2013 Maryland Code
REAL PROPERTY
§ 8-402 - Holding over


MD Real Prop Code § 8-402 (2013) What's This?

§8-402.

(a) (1) A tenant under any periodic tenancy, or at the expiration of a lease, and someone holding under the tenant, who shall unlawfully hold over beyond the expiration of the lease or termination of the tenancy, shall be liable to the landlord for the actual damages caused by the holding over.

(2) The damages awarded to a landlord against the tenant or someone holding under the tenant, may not be less than the apportioned rent for the period of holdover at the rate under the lease.

(3) (i) Any action to recover damages under this section may be brought by suit separate from the eviction or removal proceeding or in the same action and in any court having jurisdiction over the amount in issue.

(ii) The court may also give judgment in favor of the landlord for the damages determined to be due together with costs of the suit if the court finds that the residential tenant was personally served with a summons, or, in the case of a nonresidential tenancy, there was such service of process or submission to the jurisdiction of the court as would support a judgment in contract or tort.

(iii) A nonresidential tenant who was not personally served with a summons shall not be subject to personal jurisdiction of the court if that tenant asserts that the appearance is for the purpose of defending an in rem action prior to the time that evidence is taken by the court.

(4) Nothing contained herein is intended to limit any other remedies which a landlord may have against a holdover tenant under the lease or under applicable law.

(b) (1) (i) Where any tenancy is for any definite term or at will, and the landlord shall desire to repossess the property after the expiration of the term for which it was leased and shall give notice in writing one month before the expiration of the term or determination of the will to the tenant or to the person actually in possession of the property to remove from the property at the end of the term, and if the tenant or person in actual possession shall refuse to comply, the landlord may make complaint in writing to the District Court of the county where the property is located.

(ii) 1. The court shall issue a summons directed to any constable or sheriff of the county entitled to serve process, ordering the constable or sheriff to notify the tenant, assignee, or subtenant to appear on a day stated in the summons before the court to show cause why restitution should not be made to the landlord.

2. The constable or sheriff shall serve the summons on the tenant, assignee, or subtenant on the property, or on the known or authorized agent of the tenant, assignee, or subtenant.

3. If, for any reason those persons cannot be found, the constable or sheriff shall affix an attested copy of the summons conspicuously on the property.

4. After notice to the tenant, assignee, or subtenant by first-class mail, the affixing of the summons on the property shall be conclusively presumed to be a sufficient service to support restitution.

(iii) Upon the failure of either of the parties to appear before the court on the day stated in the summons, the court may continue the case to a day not less than six nor more than ten days after the day first stated and notify the parties of the continuance.

(2) (i) If upon hearing the parties, or in case the tenant or person in possession shall neglect to appear after the summons and continuance the court shall find that the landlord had been in possession of the leased property, that the said tenancy is fully ended and expired, that due notice to quit as aforesaid had been given to the tenant or person in possession and that the tenant or person in possession had refused so to do, the court shall thereupon give judgment for the restitution of the possession of said premises and shall forthwith issue its warrant to the sheriff or a constable in the respective counties commanding the tenant or person in possession forthwith to deliver to the landlord possession thereof in as full and ample manner as the landlord was possessed of the same at the time when the tenancy was made, and shall give judgment for costs against the tenant or person in possession so holding over.

(ii) Either party shall have the right to appeal therefrom to the circuit court for the county within ten days from the judgment.

(iii) If the tenant appeals and files with the District Court an affidavit that the appeal is not taken for delay, and also a good and sufficient bond with one or more securities conditioned that the tenant will prosecute the appeal with effect and well and truly pay all rent in arrears and all costs in the case before the District Court and in the appellate court and all loss or damage which the landlord may suffer by reason of the tenant’s holding over, including the value of the premises during the time the tenant shall so hold over, then the tenant or person in possession of said premises may retain possession thereof until the determination of said appeal.

(iv) The appellate court shall, upon application of either party, set a day for the hearing of the appeal, not less than five nor more than 15 days after the application, and notice for the order for a hearing shall be served on the opposite party or that party’s counsel at least 5 days before the hearing.

(v) If the judgment of the District Court shall be in favor of the landlord, a warrant shall be issued by the appellate court to the sheriff, who shall proceed forthwith to execute the warrant.

(3) (i) The provisions of this subsection shall apply to all cases of tenancies at the expiration of a stated term, tenancies from year to year, tenancies of the month and by the week. In case of tenancies from year to year (including tobacco farm tenancies), notice in writing shall be given three months before the expiration of the current year of the tenancy, except that in case of all other farm tenancies, the notice shall be given six months before the expiration of the current year of the tenancy; and in monthly or weekly tenancies, a notice in writing of one month or one week, as the case may be, shall be so given.

(ii) This paragraph (3), so far as it relates to notices, does not apply in Baltimore City.

(iii) In Montgomery County, except in the case of single family dwellings, the notice by the landlord shall be two months in the case of residential tenancies with a term of at least month to month but less than from year to year.

(4) When the tenant shall give notice by parol to the landlord or to the landlord’s agent or representatives, at least one month before the expiration of the lease or tenancy in all cases except in cases of tenancies from year to year, and at least three months’ notice in all cases of tenancy from year to year (except in all cases of farm tenancy, the notice shall be six months), of the intention of the tenant to remove at the end of that year and to surrender possession of the property at that time, and the landlord, the landlord’s agent, or representative shall prove the notice from the tenant by competent testimony, it shall not be necessary for the landlord, the landlord’s agent or representative to provide a written notice to the tenant, but the proof of such notice from the tenant as aforesaid shall entitle the landlord to recover possession of the property hereunder. This paragraph shall not apply in Baltimore City.

(5) Acceptance of any payment after notice but before eviction shall not operate as a waiver of any notice to quit, notice of intent to vacate or any judgment for possession unless the parties specifically otherwise agree in writing. Any payment accepted shall be first applied to the rent or the equivalent of rent apportioned to the date that the landlord actually recovers possession of the premises, then to court costs, including court awarded damages and legal fees and then to any loss of rent caused by the holdover. Any payment which is accepted in excess of the foregoing shall not bear interest but will be returned to the tenant in the same manner as security deposits as defined under § 8-203 of this title but shall not be subject to the penalties of that section.

(c) Unless stated otherwise in the written lease and initialed by the tenant, when a landlord consents to a holdover tenant remaining on the premises, the holdover tenant becomes a periodic week-to-week tenant if the tenant was a week-to-week tenant before the tenant’s holding over, and a periodic month-to-month tenant in all other cases.

§ 8-402 - 1. Breach of lease

(a) Complaint to District Court; summons to appear; notice; continuance. --

(1) (i) Where an unexpired lease for a stated term provides that the landlord may repossess the premises prior to the expiration of the stated term if the tenant breaches the lease, the landlord may make complaint in writing to the District Court of the county where the premises is located if:

1. The tenant breaches the lease;

2. A. The landlord has given the tenant 30 days' written notice that the tenant is in violation of the lease and the landlord desires to repossess the leased premises; or

B. The breach of the lease involves behavior by a tenant or a person who is on the property with the tenant's consent, which demonstrates a clear and imminent danger of the tenant or person doing serious harm to themselves, other tenants, the landlord, the landlord's property or representatives, or any other person on the property and the landlord has given the tenant or person in possession 14 days' written notice that the tenant or person in possession is in violation of the lease and the landlord desires to repossess the leased premises; and

3. The tenant or person in actual possession of the premises refuses to comply.

(ii) The court shall summons immediately the tenant or person in possession to appear before the court on a day stated in the summons to show cause, if any, why restitution of the possession of the leased premises should not be made to the landlord.

(2) (i) If, for any reason, the tenant or person in actual possession cannot be found, the constable or sheriff shall affix an attested copy of the summons conspicuously on the property.

(ii) After notice is sent to the tenant or person in possession by first-class mail, the affixing of the summons on the property shall be conclusively presumed to be a sufficient service to support restitution.

(3) If either of the parties fails to appear before the court on the day stated in the summons, the court may continue the case for not less than six nor more than 10 days and notify the parties of the continuance.

(b) Judgment of District Court; appeal. --

(1) If the court determines that the tenant breached the terms of the lease and that the breach was substantial and warrants an eviction, the court shall give judgment for the restitution of the possession of the premises and issue its warrant to the sheriff or a constable commanding the tenant to deliver possession to the landlord in as full and ample manner as the landlord was possessed of the same at the time when the lease was entered into. The court shall give judgment for costs against the tenant or person in possession.

(2) Either party may appeal to the circuit court for the county, within ten days from entry of the judgment. If the tenant (i) files with the District Court an affidavit that the appeal is not taken for delay; (ii) files sufficient bond with one or more securities conditioned upon diligent prosecution of the appeal; (iii) pays all rent in arrears, all court costs in the case; and (iv) pays all losses or damages which the landlord may suffer by reason of the tenant's holding over, the tenant or person in possession of the premises may retain possession until the determination of the appeal. Upon application of either party, the court shall set a day for the hearing of the appeal not less than five nor more than 15 days after the application, and notice of the order for a hearing shall be served on the other party or that party's counsel at least five days before the hearing. If the judgment of the District Court is in favor of the landlord, a warrant shall be issued by the court which hears the appeal to the sheriff, who shall execute the warrant.

(c) Payments accepted after notice but before eviction. --

(1) Acceptance of any payment after notice but before eviction shall not operate as a waiver of any notice of breach of lease or any judgment for possession unless the parties specifically otherwise agree in writing.

(2) Any payment accepted shall be first applied to the rent or the equivalent of rent apportioned to the date that the landlord actually recovers possession of the premises, then to court costs, including court awarded damages and legal fees and then to any loss of rent caused by the breach of lease.

(3) Any payment which is accepted in excess of the rent referred to in paragraph (2) of this subsection shall not bear interest but will be returned to the tenant in the same manner as security deposits as defined under § 8-203 of this title but shall not be subject to the penalties of that section.

§ 8-402 - 2. Ejectment

(a) Applicability. --

(1) This section applies to property:

(i) Leased for business, commercial, manufacturing, mercantile, or industrial purposes, or any other purpose that is not primarily residential;

(ii) Improved or to be improved by any apartment, condominium, cooperative, or other building for multifamily use of greater than four dwelling units; or

(iii) Leased for dwellings or mobile homes that are erected or placed in a mobile home development or mobile home park.

(2) This section does not apply to residential property that is or was used, intended to be used, or authorized to be used for four or fewer dwelling units.

(b) Ejectment where 6 months ground rent is due. -- Whenever, in a case that involves a 99-year ground lease renewable forever, at least 6 months ground rent is in arrears and the landlord has the lawful right to reenter for the nonpayment of the rent, the landlord, no less than 45 days after sending to the tenant by certified mail, return receipt requested, at the tenant's last known address, and also by first-class mail to the title agent or attorney listed on the deed to the property or the intake sheet recorded with the deed, a bill for the ground rent due, may bring an action for possession of the property under § 14-108.1 of this article; if the tenant cannot be personally served or there is no tenant in actual possession of the property, service by posting notice on the property may be made in accordance with the Maryland Rules. Personal service or posting in accordance with the Maryland Rules shall stand in the place of a demand and reentry.

(c) Notice of judgment. --

(1) Before entry of a judgment the landlord shall give written notice of the pending entry of judgment to each mortgagee of the lease, or any part of the lease, who before entry of the judgment has recorded in the land records of each county where the property is located a timely request for notice of judgment. A request for notice of judgment shall:

(i) Be recorded in a separate docket or book that is indexed under the name of the mortgagor;

(ii) Identify the property on which the mortgage is held and refer to the date and recording reference of that mortgage;

(iii) State the name and address of the holder of the mortgage; and

(iv) Identify the ground lease by stating:

1. The name of the original lessor;

2. The date the ground lease was recorded; and

3. The office, docket or book, and page where the ground lease is recorded.

(2) The landlord shall mail the notice by certified mail return receipt requested to the mortgagee at the address stated in the recorded request for notice of judgment. If the notice is not given, judgment in favor of the landlord does not impair the lien of the mortgagee. Except as otherwise provided in this subsection, the property is discharged from the lease and the rights of all persons claiming under the lease are foreclosed unless, within 6 calendar months after execution of the judgment for possession, the tenant or any other person claiming under the lease:

(i) Pays the ground rent, arrears, and all costs awarded against that person; and

(ii) Commences a proceeding to obtain relief from the judgment.

(d) Payment by tenant of costs and damages sustained by landlord. -- This section does not bar the right of any mortgagee of the lease, or any part of the lease, who is not in possession at any time before expiration of 6 calendar months after execution of the judgment awarding the landlord possession, to pay all costs and damages sustained by the landlord and to perform all the covenants and agreements that are to be performed by the tenant.

§ 8-402 - 3. Lien for nonpayment of ground rent

(a) Definitions. --

(1) In this section the following words have the meanings indicated.

(2) "Ground lease" means a residential lease or sublease for a term of years renewable forever subject to the payment of a periodic ground rent.

(3) (i) "Ground lease holder" means the holder of the reversionary interest under a ground lease.

(ii) "Ground lease holder" includes an agent of the ground lease holder.

(4) "Ground rent" means a rent issuing out of, or collectible in connection with, the reversionary interest under a ground lease.

(5) "Leasehold interest" means the tenancy in real property created under a ground lease.

(6) "Leasehold tenant" means the holder of the leasehold interest under a ground lease.

(7) "Property" means property subject to a ground lease against which a lien is intended to be imposed under this section.

(b) Applicability. --

(1) This section applies to residential property that is or was used, intended to be used, or authorized to be used for four or fewer dwelling units.

(2) This section does not apply to property:

(i) Leased for business, commercial, manufacturing, mercantile, or industrial purposes, or any other purpose that is not primarily residential;

(ii) Improved or to be improved by any apartment, condominium, cooperative, or other building for multifamily use of greater than four dwelling units; or

(iii) Leased for dwellings or mobile homes that are erected or placed in a mobile home development or mobile home park.

(c) Remedies. --

(1) Notwithstanding any provision of a ground lease giving the ground lease holder the right to reenter, the establishment of a lien under this section is the remedy for nonpayment of a ground rent.

(2) This section does not affect the right of a ground lease holder to bring a civil action against the leasehold tenant seeking a money judgment for the amount of the past due ground rent.

(d) When lien may be obtained. --

(1) Subject to §§ 8-111 and 8-111.1 of this title and paragraph (2) of this subsection, if a ground rent is unpaid 6 months after its due date, the ground lease holder may obtain a lien under this section in the amount of the ground rent due.

(2) The ground lease holder may not obtain a lien under this section unless:

(i) The ground lease is registered with the State Department of Assessments and Taxation under Subtitle 7 of this title; and

(ii) The ground lease holder has mailed a bill for the payment due to the last known address of the leasehold tenant and to the address of the property subject to the ground lease in accordance with § 14-116.1 of this article.

(e) Notice. --

(1) A ground lease holder seeking to create a lien under this section shall give written notice to:

(i) The leasehold tenant; and

(ii) Each mortgagee or trustee of the property whose lien is on record.

(2) (i) Notice under this subsection shall be served on the leasehold tenant by:

1. Certified mail, return receipt requested, addressed to the leasehold tenant or the leasehold tenant's successor in interest at the individual's current address; or

2. Personal delivery to the leasehold tenant or the leasehold tenant's successor in interest.

(ii) If the ground lease holder is unable to serve the leasehold tenant under subparagraph (i) of this paragraph, notice under this subsection shall be given by:

1. Mailing the notice to the leasehold tenant's last known address; and

2. Posting the notice in a conspicuous manner on the property on the door or other front part of the property by the ground lease holder in the presence of a competent witness.

(iii) Notice to any mortgagee or trustee under this subsection shall be given by sending the notice by certified and first-class mail to the most current address for notices as set forth in the land records or, if no such address is contained in the land records, to the mortgagee's or trustee's current address.

(3) A notice under this subsection shall include:

(i) The name and address of the party seeking to create the lien;

(ii) A statement of intent to create a lien;

(iii) An identification of the ground lease;

(iv) A statement that the ground lease is registered with the State Department of Assessments and Taxation;

(v) The amount of ground rent alleged to be due;

(vi) A description of the property sufficient to identify the property;

(vii) A statement that the party to whom notice is given under this subsection has the right to object to the establishment of a lien by filing a complaint in the circuit court and the right to a hearing;

(viii) An explanation of the procedure to file a complaint and request a hearing; and

(ix) A statement that, unless the past due ground rent is paid or a complaint is filed under subsection (f) of this section within 45 days after the notice is served, a lien will be imposed on the property.

(f) Complaint. --

(1) A party to whom notice is given under subsection (e) of this section may, within 45 days after the notice is served on the party, file a complaint in the circuit court for the county in which the property is located to determine whether a lien should be established.

(2) A complaint filed under this subsection shall include:

(i) The name of the complainant and the name of the party seeking to establish the lien;

(ii) A copy of the notice served under subsection (e) of this section; and

(iii) An affidavit containing a statement of facts that would preclude establishment of the lien for the unpaid ground rent alleged in the notice.

(3) A party filing a complaint under this subsection may request a hearing at which any party may appear to present evidence.

(g) Complaint -- Burden of proof. -- If a complaint is filed, the party seeking to establish the lien has the burden of proof.

(h) Supplemental information. -- Before any hearing held under subsection (f) of this section, the party seeking to establish a lien may supplement, by means of an affidavit, any information contained in the notice given under subsection (e) of this section.

(i) Review and hearing. -- If a complaint is filed under subsection (f) of this section, the court shall review any pleadings filed, including any supplementary affidavit filed under subsection (h) of this section, and shall conduct a hearing if requested under subsection (f)(3) of this section.

(j) Order. --

(1) If the court determines that a lien should be established, it shall enter an order finding the amount of ground rent due and imposing a lien on the property identified in the notice under subsection (e) of this section.

(2) If the court determines that a lien should not be established, it shall enter an order denying a lien.

(3) The court may award to the prevailing party in an action under this section:

(i) Court costs; and

(ii) Reasonable expenses and attorney's fees not exceeding $ 500.

(k) Amount of lien. --

(1) (i) If a complaint was filed under subsection (f) of this section, the amount of the lien shall be for the ground rent found by the court to be due and any costs, expenses, and attorney's fees awarded by the court.

(ii) If a complaint was not filed under subsection (f) of this section and the past due ground rent was not paid, the amount of the lien shall be for the amount alleged to be due in the notice under subsection (e) of this section and reasonable expenses and attorney's fees not exceeding $ 150.

(2) The amount of the lien shall increase by the amount of ground rent accruing after the filing of the statement of lien in the land records plus simple interest at the rate prescribed by law accruing from the date of the filing of the statement of lien in the land records.

(l) Statement of lien. --

(1) If the court orders a lien to be imposed under subsection (j) of this section, or if the leasehold tenant or any mortgagee of the property fails to pay the amount of the lien under subsection (k)(1)(ii) of this section or file a complaint under subsection (f) of this section, the ground lease holder may file a statement of lien in the land records of the county in which the property is located.

(2) A lien imposed under this subtitle has priority from the date the ground lease was created.

(m) Statement of lien -- Form. -- A statement of lien is sufficient for purposes of this section if it is in substantially the following form:

"STATEMENT OF LIEN

This is to certify that the property described as is subject to a lien under § 8-402.3 of the Real Property Article, Annotated Code of Maryland, in the amount of $ . The property is owned by .

I hereby affirm under the penalty of perjury that notice was given under § 8-402.3(e) of the Real Property Article on , and that the information contained in the foregoing statement of lien is true and correct to the best of my knowledge, information, and belief.

(name of party claiming lien)".

(n) Enforcement and foreclosure. --

(1) A lien under this section may be enforced and foreclosed by the party who obtained the lien in the same manner and subject to the same requirements, as the foreclosure of a mortgage or deed of trust containing neither a power of sale nor an assent to decree.

(2) A foreclosure sale may not be made if, at any time before the sale, the lien is satisfied and the costs of giving notice of the sale are paid.

(3) If the property subject to the lien is sold at a foreclosure sale, the ground lease holder shall be paid out of the proceeds of the sale:

(i) For a redeemable ground rent, the amount of the lien and the redemption amount under § 8-110(b)(2) of this title and the purchaser shall take title to the property free and clear of the ground lease; and

(ii) For an irredeemable ground rent, the amount of the lien and the purchaser shall take title to the property subject to the ground lease.

(o) Satisfaction of lien when lienholder cannot be located. -- If the lienholder cannot be located, the lien may be satisfied and the redeemable ground rent redeemed in accordance with § 8-110(f) of this title by paying the amount of the lien and the amount set forth in § 8-110(f)(4) of this title.

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