(dissenting) :
My dissent will be brief. My colleagues step over established legal principles of property law in their effort to extend the latter-day rule respecting ulterior motive for eviction. In taking this step, they sacrifice attributes of private ownership of property which are essential to our system. They do it at a time when there is mounting indication that the initial step in this direction exacerbates rather than alleviates substandard housing and the shortage of low and medium income rental housing. See Edwards v. Habib, 130 U.S.App.D.C. 126, 142-43, 397 F.2d 687, 703-04 (1968) (Danaher, J., dissenting).
In flagrant violation of the Statute of Frauds (D.C.Code 1973, § 28-3502) and D.C.Code 1973, §§ 45-8071 and 45-901,2 my colleagues change, or permit to be changed by extrinsic evidence, the basic nature of a fixed-term lease. They also create, without acknowledging it, a new and strange type of leasehold estate where one refuses to vacate at the expiration of the lease term. Perhaps it could be called a tenancy by trespass. Whatever it is, it is somehow unprecedently treated as superior to the “estate in possession” of the owner under D.C.Code 1973, § 45-807.
D.C.Code 1973, § 45-901 provides that the owner is entitled to immediate possession upon expiration of the fixed rental period. As of that moment the leasehold relationship between these parties expired.
Appellant could not become a tenant from month-to-month because paragraph 35 of the lease provides for this only if the tenant holds over with the landlord’s permission, which was expressly withheld. No other form of tenancy survived. See Bell v. Westbrook, D.C.Mun.App., 50 A.2d 264 (1947), as to a failure of an estate at sufferance to survive. As in Bell, the owner here also brought an immediate action for possession. An estate at will (D. C.Code 1973, § 45-822) did not survive since “the joint will of lessor and lessee” is lacking.
In applying § 2901 of the Housing Regulations, my colleagues fail to take cognizance of the fact that it proscribes retaliatory acts against a “tenant”. They also fail to recognize that Chapter 1, § 1101.1 of the Regulations states that “[wjords shall have their usual meaning unless the context clearly indicates a different meaning”, and that § 1102 defines a “tenant” as one “who holds or possesses a habitation . with the consent of [the] owner.”
Let us consider today’s holding in the context of a fixed-term lease of a habitation where the lessor plans to be away from his home but plans possibly to return upon expiration of the term. If he does so or leases to another and demands possession by refusing to consent to a month-to-month holdover, the tenant may forestall his eviction for the time it takes to get a jury trial on an assertion that refusal is a retaliatory act within a proscriptive regulation. The fundamental nature of an ordinary fixed-term lease has now been changed. It is now for a time certain plus at least litigation time.
The appellant is in possession of appel-lee’s property against its will and is nothing but a trespasser. The housing regulations do not and cannot benefit him.3 Our holding is an unprecedented step which, in my view, we cannot and should not take.
*320The majority observes that the appellee gave advance notice to vacate at the end of the term. Since post-term notice, absent acceptance of rent for post-term occupancy, does not create a holdover leasehold (Williams v. John F. Donohoe & Sons, Inc., D.C.Mun.App., 68 A.2d 239 (1949)), it would seem that our holding must be confined to cases where notice is given during the existence of the tenancy. How else, except by this dubious reasoning, can housing regulations, applicable only to landlords and tenants, be held to apply? Moreover, it also is to be expected that fixed-term lease provisions may now be modified to eliminate a month-to-month holdover provision. In such cases, it would seem that a demand for possession upon expiration of the term could not be stalled by a proffer of retaliatory motive for refusal to renew. It is to be hoped that our holding will be confined to its precise facts.
Another basis for our extension of Edwards v. Habib, supra, is that it must apply to long-term as well as to short-term leases. I suggest, respectfully, that this argument reveals a misunderstanding of the is-' sue. A month-to-month tenancy is hardly short term; it is indefinite. A one-year, lease is not long term; it is a definite term. When it expires, it is ended.
. D.C.Code 1973, § 45-807 provides:
An estate in possession exists when the owner has an immediate right to the possession of the land.
. D.C.Code 1973, § 45-901 provides:
When real estate is leased for a certain term no notice to quit shall be necessary, but the landlord shall be entitled to the possession, without such notice, immediately upon the expiration of the term.
.The same may he said for section 214(a) of D.C. Act 1-35 July 25, 1975.