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12. THE GROSS RENTAL OF THIS PROPERTY 18 $4,400 per annum. CHAPTER XV

The Presumption that the Rent is Unreasonable.

THE PRESUMPTION AS IT IS

The statute creates a presumption that an agreement to pay rent which “has been increased over the rent as it existed one year prior to the time of the agreement under which the rent is sought to be recovered,” is unjust, unreasonable and oppressive."

THE PRESUMPTION AS IT WAS WHEN ORIGINALLY ENACTED

This presumption when originally created in April, 1920,2 arose only where it appeared that the rent had been increased more than twenty-five per centum over the rent as it existed one year prior. This so-called “twenty-five per cent provision” was greatly misunderstood by the public, and in the law as it was passed at the extra session of the Legislature in September, this section was changed to read as it now stands. 3

Under the law as it formerly was, the impression seemed generally to prevail that a landlord was thereby licensed to increase his rent 25% in a given year. Such an increase, of course, in many instances was unjust. Because of the prevalent misconception referred to, the law was abused, and was probably for this reason changed to its present form.

1 Chap. 136, Laws of 1920, $ 2, as amended by Chap. 944, Laws of 1920, 83, and incorporated unchanged as amended in Chap. 434, Laws of 1921, $3,

2 Chap. 136, Laws of 1920.
Chap. 944, Laws of 1920, 83; Chapter 434, Laws of 1921, 83,

3

MERELY A RULE OF EVIDENCE

The presumption originally created by Chapter 136, as well as the presumption in its present form, as it was amended by Chapter 944 of the Laws of 1920, is merely a rule of evidence. As such, it was competent for the Legislature to change the law and apply the statute to existing leases.

THE NATURE OF THE AMENDMENT IN THE LAW

6

The statute, both as it was originally enacted and as it was later amended, gives the tenant the benefit of the presumption that the agreement is unjust, unreasonable and oppressive. The amendment merely changes the facts essential to create the presumption."

The presumption as it now stands applies, therefore, to leases or agreements made prior to the date of the amendment of the statute and is effective as to leases made after April 1, 1920, when chapter 136 went into effect.8

MEANING OF “TIME OF THE AGREEMENT" IN THE LAW

The language of the statute is not wholly free from ambiguity. It refers to rent “one year prior to the time of the agreement under which the rent is sought to be recovered."

The question arises, does that mean the date of the agree ment, that is, the day the lease was signed or entered into, or, does it refer to some other date. Take, for example, a case where rent is sought to be recovered for the month of July, 1921, under an agreement dated October 1, 1919.

* Levy Leasing Co. v. Siegel, 194 App. Div. 482, 497, 186 N. Y. Supp. 5, affirmed 230 N. Y. 634, citing Sackheim v. Pigueron, 215 N. Y. 62.

6 Chap. 136, Laws of 1920.
• Chap. 944, Laws of 1920.
? Lewine v. Weil, 188 N. Y. Supp. 385.
8 Lewine v. Weil, supra.

Is October 1, 1918, or July, 1920, to be the date fixed for the ascertainment or whether the rent has been increased? Adopting the natural import of the language of the statute, "time of the agreement” would seem to mean, “date of the agreement. This would seem to be the correct interpretation.

GENERAL NATURE OF THE PRESUMPTION

A presumption of law is a rule of law announcing a definite probative weight attached by jurisprudence to a proposition of logic. It is an assumption made by the law

. that a strong inference of fact is prima facie correct, and will therefore sustain the burden of evidence, until conflicting facts on the point are shown. Where such evidence is introduced, the presumption of law is functus officio and drops out of sight.'

A presumption has been described as "a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved.” 10

The presumption created by the statute under consideration is a rebuttable presumption. By that is meant that it is a presumption that may be overcome by proof. It is to be distinguished from a conclusive presumption, which is absolute and irrebuttable and conclusive, irrespective of what proof may be offered to overcome it. The presumption with which the public is perhaps most familiar is the presumption of innocence, which protects a person accused of a crime until his guilt is established by proof strong enough to overcome the presumption of innocence, namely, proof

• The above statement of the law is from Corpus Juris, vol. 22, page 124, citing Potts v. Pardee, 220 N. Y. 431, 433.

10 3 Bouvier's Law Dict. 2678, adapted from Steph. Ev. 4, and cited with approval in Ulrich v. Ulrich, 136 N. Y. 120.

beyond a reasonable doubt. So, here, in the case of the present presumption, the agreement to pay rent is by law presumed “unjust, unreasonable and oppressive," when it is made to appear that the rent has been increased to any extent, no matter how slight, over what it was one year prior to the time of the agreement under which the rent is sought to be recovered. The defense that the agreement is unjust, unreasonable and oppressive is, of course, the defense created by subdivision one of the statute. 11

THE PRESUMPTION AS IT AFFECTS THE BURDEN OF PROOF

This defense which the statute permits a defendant or tenant to interpose is an affirmative defense. The burden of proving such a defense rests upon the party asserting it.

If the landlord sues for the reasonable rental value of the use and occupation of premises, and not for rent reserved in an express agreement, the burden will rest upon the landlord, irrespective of any presumption, to prove what is a reasonable rental value of the premises in question.12

Some confusion has arisen in respect to the effect of the presumption we have been speaking of on the burden of proof. We believe that the following quotation from “Corpus Juris ” 13 correctly states the law on the point:

“While the existence of a presumption of law does not affect the burden of proof, yet, as an inference of fact which the law assumes to be correct, establishes, in the absence of evidence to the contrary, a prima facie case and thereby sustains the burden of evidence on the point which it covers, it is frequently said that presumptions of law shift the burden of proof, meaning of course

11 Chap. 136, Laws of 1920, as amended by Chap. 944, Laws of 1920, and by Chap. 434, Laws of 1921.

12 Shuck v. McCarthy, 189 N. Y. Supp. 195 (App. Term, 1st Dept.). 13 Vol. 22, page 79.

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