(concurring).
I concur in the foregoing opinion. I also think that apart from the reason assigned for reversal the trial court was in error in decreeing a rescission of the lease.
Section 10(a) of the Emergency Rent Act, quoted supra, authorizes rescission only where the landlord receives rent or refuses to render services in violation (1) “of any provision of this Act”, or (2) “of any regulation or order thereunder prescribing a rent ceiling or service standard.” The grounds of rescission here were limited to the receipt of rent. No regulation was involved. The order determining, which may be regarded as “prescribing,” a rent ceiling was made after the rent complained of had been collected. The only question remaining is whether the receipt of rent was in violation of any provision of the act.
In Moore v. Coates, Mun.App.D.C., 40 A.2d 68, decided this day, we held that, as to property not rented on January 1, 1941, or during the year preceding, the rent charged for comparable housing was inoperative as a rent ceiling until reduced to a definite figure by the determination of the Administrator. Here the injustice of holding otherwise is more patent. The rescission of a three year lease, a penalty having no relation to the collection of rent, is invoked as the result of a collection of rent which was less than 6% above the rate later fixed by the Administrator. Such a difference does not indicate that the rent charged was unreasonable or out of proportion to rents of comparable housing accommodations, but suggests rather that it was within the area which remained uncertain until defined by the Administrator. I cannot believe that Congress intended to make compliance with the law depend upon the outcome of a guessing contest.
While not bearing upon the questions of law involved in the appeal, I think it should be noted that reversal of the judgment entered by the trial court does not leave the parties to further litigation to adjust their obligations. Prior to the hearing in this' court appellee had surrendered possession of the premises, rents had been adjusted and settled as of that date, and the case was moot except as to that provision of the judgment allowing attorneys’ fees.