(dissenting).
I think the judgment should be reversed. This property, situated in a business district, zoned for commercial use and adaptable to a commercial use, was leased with an express covenant that it was to be used for commercial purposes only. This provision of the lease must be accepted as determinative of the rights of the parties at the time of the execution of the lease because parol evidence cannot be allowed to contradict the express provision of a written lease. Merritt v. Kay, 54 App.D.C. 152, 295 F. 973; Wigmore, Evidence § 2425 (3d ed.); Restatement, Contracts § 240, comment b; Howenstein Realty Corp. v. Richardson, 77 U.S.App.D.C. 299, 135 F.2d 803. Cf. Lumber Underwriters of New York v. Rife, 237 U.S. 605, 35 S.Ct. 717, 59 L.Ed. 1140. Therefore it must be taken that this property was rented for commercial purposes. Although acceptance of rent by the landlord with knowledge of the breach of the covenant may have resulted in a waiver of the landlord’s right to terminate the lease on account of such breach, it did not obliterate the fact that the property was rented for commercial purposes.
The Rent Act applies to housing accommodations only and it defines 'housing accommodations to be any building, etc., “rented or offered for rent for living or dwelling purposes,” and it is my understanding that the purpose for which rented is the test of whether the property is subject to the Rent Act. If use of the premises is the test, as the majority opinion says it is, then this property under this single lease may from time to time, depending on the tenant’s use, pass from rent control to noncontrol. The tenant has the right under her lease to use the property for commercial purposes and if tomorrow she commences to so use it I do not believe anyone would contend that it would be then subject to the Rent Act. We thus have the situation where, under the majority opinion, a tenant may shift property from rent control to noncontrol when and if it appears to be advantageous for her to do so. I do not believe the Rent Act contemplated any such shifting back and forth.
Under the majority opinion every landlord of commercial property must ever be on the alert to bring eviction proceedings immediately against any tenant suspected of using the rented premises in whole or in part for dwelling purposes or else take his chance against a claim that his property rented for commercial purposes has suddenly become housing accommodations subject to rent control. The practical result in this case is that property rented for commercial purposes at an agreed rental of $200 per month is converted into housing accommodations at a rental fixed by the Administrator, of $85 *256per month, which latter sum is less than the landlord formerly received as rent for commercial use of the basement and one room on the first floor.
There is no ¡intimation in the record that this lease was a subterfuge or attempted evasion of the Rent Act, and the trial court made no suoh finding. In such a case I believe applicability of the Rent Act is to be determined by the express provision of the agreement between the parties and not by a subsequent use by the tenant.