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Whether a Unsound Mind (Lunatic) person is Competent to Execute a Sale Deed ?
Before :- V.K. Jhanji, J.
C.W.P. No. 6657 of 1991. D/d. 27.10.1998.
For the Petitioners :- Mr. Viney Mittal, Sr. Advocate with Mr Arvind Bansal, Advocate.
For the Respondents : - Mr. Harbhagwan Singh, Sr. Advocate with Mr. Arun Nehra, Mr. Ravindra Khandelwal, Mr. L.M. Gulati and Mr. Hittan Nehra, Advocates, and Mr. N.S. Bhinder, DA, Haryana.
1. In this petition, challenge is to order dated 20.3.1991 passed by the Registrar (Deputy Commissioner), Ambala where by the Registrar in exercise of his powers under Section 68 of the Indian Registration Act has ordered cancellation of sale-deed dated" 15.2.1991 alleged to have been executed by Swaran Singh in favour of petitioners.
2. It is the case of the petitioners that Swaran Singh was owner of land measuring 234 Kanals 10 marlas situated in village Nauhni, Tehsil and District Ambala, vide registered sale-deed dated 15.2.1991, Swaran Singh sold his entire land for a consideration of Rs. 14,16,000/-. On 28.2.1991, Puran Singh (respondent No. 3) on his behalf and on behalf of Swaran Singh filed an application before the Registrar under Section 68 of the Indian Registration Act alleging therein that sale-deed executed by Swaran Singh is a void document because Swaran Singh was not competent to execute the same or sell his property being a person of unsound mind and an idiot from his very childhood. Upon notice of the application, petitioners by filing reply, denied the allegations. Petitioners contended that Swaran Singh was fully competent to execute the sale-deed and they are bonafide purchasers for consideration. Petitioners further contended that they had purchased the property after making necessary enquiry with regard to title of the vendor. Registrar vide order dated 203.1991 recorded a finding that Swaran Singh was of unsound mind and the sale-deed allegedly executed by him in favour of petitioners is simply a concoction. Registrar held that the Sub Registrar had no power to register a document purported to have been presented by a person of unsound mind. The sale-deed was thus, ordered to be cancelled. Hence, the present writ petition challenging the order of the Registrar on the ground that Registrar had no power under Section 68 of the Act to cancel the sale-deed registered by the Sub Registrar.
3. Learned counsel appearing on behalf of petitioners has contended that the powers of the Sub Registrar in registering a document presented to him for registration are absolute. It is contended that the Statute does not give any power to the Registrar to cancel registration of a document registered by the Sub Registrar. Against this, it is contended by the counsel appearing on behalf of contesting respondents that the powers vested under Section 35 of the Indian Registration Act was erroneously exercised by the Sub Registrar with the connivance of the petitioners and therefore, the Registrar in the facts and circumstances of this case rightly rectified the wrong done by the Sub Registrar. It is also contended that even if the order of the Registrar is held to be bad, then also it is not a fit case for exercising powers under Article 226 of the Constitution of India. It is contended that the order of the Registrar has done substantial justice and therefore, calls for no interference.
5. In 1960, Jagir Kaur, mother of Swaran Singh made an application to the District Judge, Ambala, under the Indian Lunancy Act for appointment of guardian and manager of the estate of lunatic, Swaran Singh. Her petition was contested by Puran Singh, Jagjit Singh, Hardial Singh sons of Hazara Singh on the ground that she being the natural guardian cannot be appointed guardian and manager of the estate of lunatic, Swaran Singh. The learned District Judge vide order dated 1.4.1982 dismissed the application filed by Puran Singh and others. The said Puran Singh and others filed an appeal in the High Court. During the pendency of appeal, Jagir Kaur died. On account of her death, the High Court ordered that appellant, Puran Singh and others may apply afresh for being appointed as guardian of the person and manager of the property of the lunatic. Puran Singh and others thereafter filed an application for inquisition under Section 62 of the Indian Lunancy Act before the District Judge, Ambala. On their application, notice was issued to the General Public, but none came forward to contest the petition. In the said proceedings. Dr. R.K. Patnaik, Senior Officer (Psychiatry), General Hospital, Ambala, deposed that from 29.1.1980 to 2.2.1980, Swaran Singh remained under his observation. He opined it to be a case of mental retardation as the person was unable to take care of himself being a man of unsound mind. Dr. S.C. Goyal, Civil Surgeon, deposed that while posted as Registrar, Medical College, Rohtak in May, 1980, Swaran Singh lunatic was found suffering from mental retardation. Swaran Singh was unable to take care of himself and his belongings without the help of others. The learned District Judge, Ambala, on the basis of evidence including the evidence of doctors, vide order dated 14.8.1984 recorded a finding that Swaran Singh is a person of unsound mind and is incapable of managing his property. Since the application for appointment of guardian and manager of the estate of lunatic was by 3 brothers who were undisputedly collaterals of the lunatic, the learned District Judge did not think it proper to appoint ail the three persons as guardian and manager of the person of the lunatic and ordered the appointment of Puran Singh, the eldest of all as guardian of the person and manager of his property Puran Singh who was appointed as guardian of the person of the lunatic and manager of the lunatic's estate, alone was competent to sell the land and that too with the permission of the Court. Section 75 of the Act empowers the manager to transfer the property with the permission of the Court. Proviso to Section 75 imposes a curb on the power of the manager to effect a sale. In this case, sale in favour of petitioners was not by the manager but by Swaran Singh who had been declared as a person of unsound mind.
6. In this background, the question to be considered is the competency of Swaran Singh to sell land vide registered sale-deed in favour of petitioners.
7. Section 7 of the Transfer of Property Act declares that every person competent to contract and entitled to transfer property can transfer the same to the extent and in the manner allowed and prescribed by law for the time being in force. Section 11 of the Indian Contract Act, 1872 lays down that every person is competent to contract who is of the age of majority according to law, to which he is subject and who is of sound mind and is not disqualified from contracting under any law to which he is subject. Section 12 of the Indian Contract Act deals with as to what is sound mind for the purpose of contracting. It says that a person is said to be of sound mind for the purpose of making 'contract' if at the time when he makes it he is capable of understanding it and for forming a rational judgment as to its effect upon his interests. It says that a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. It also says that a person who is usually of sound mind but occasionally of unsound mind, may not make a contract when he is of unsound mind.
"The Court will not recognise such a deed even by directing proceedings to be taken to try the question of its validity or to perpetuate testimony as to the state of the lunatic's mind when it was expected, but will treat the deed as entirely null and void."
9. In Machaima and Anr. v. Usman Beari, (1907)17 Madras Law Journal 78, sale-deed executed by the plaintiff when he was a lunatic, was held to be void under Section 11 of the Contract Act and it was said that defendant cannot rely on such a document in support of his title. Reliance in this regard was placed on the judgment in Mohori Bibee v. Dharmadas Ghose, I.LR. 30 Calcutta, 539 wherein the Privy Council made it perfectly clear that Section 11 should be literally construed.
10. In Subba Naicker v. Solaiappa Naicker, A.I.R. 1933 Madras 624, the learned Judge of the Madras High Court, followed the judgments in Marshall's and Re: Walker, (1905) 1 Ch. 160 and held that alienation by a lunatic even during lucid interval is null and void.
11. In Kamola Ram and Ors. v. Kaura Khan, 1912 Punjab Records, No. 41, Hon'ble Rattigan, J. speaking for the Bench opined that a contract entered into by a person of unsound mind being void under Section 12 of the Contract Act, the claim of the plaintiffs for refund of sums advanced to the defendant-lunatic is not entertainable and must fail."
12. It is thus, settled that once a person is disqualified from contracting being of unsound mind, a contract by him is void. In this case, Swaran Singh had been found to be lunatic by inquisition and therefore, he was not competent to sell the land in favour of petitioners.
13. The next question to be considered is as to whether Registrar had any power under the Indian Registration Act to cancel the sale-deed registered by the Sub Registrar.
(c) if the person executing the document is dead and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Secs. 58 to 61, inclusive.
(2) The' registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
(b) if any such person appears to the registering officer to be a miner, an idiot, or a lunatic, or.
Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents, the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.
68.(1) Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate.
(2) Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered."
15. A bare perusal of Section 35 of the Act would show that the powers of the Sub Registrar in registering a document presented to him for registration are absolute. Sub-Registrar for the purpose of satisfying himself with regard to identity of the persons appearing before him or any other such purpose contemplated by the Act, is empowered to examine any person in his office and it is only where the person by whom document purported to be executed, denies its execution or if any such person appears to be minor, an idiot or a lunatic, he shall refuse to register the said document. The power conferred under Section 68 of the Act on the Registrar to exercise superintendence and control over the Sub Registrar is administrative. A Division Bench of the Lahore High Court in Hussain Ali Shah v. Sardar Ali Shah and Ors., A.I.R. 1933 Lahore 786, held that Section 68(2) of the Act does not confer upon the Registrar the power of cancelling the registration of a document, the execution of which is not denied and which has already been registered by Sub Registrar. In Nyadarsingh v. Chensingh, A.I.R. 1955 Madhya Bharat 205, the Division Bench relied on the judgment of Lahore High Court, and held that Section 68 only empowers the Registrar to issue directions to the Sub Registrars in respect of the their ministerial functions and duties. The section does not confer on the Registrar the power of cancelling registration of a document, the execution of which is not denied and which has been registered by the Sub Registrar.
16. In the light of the judgments referred to above, order dated 20.3.1991 of the Registrar cancelling the sale-deed cannot be sustained. However, taking that the Registrar had acted without jurisdiction in cancelling sale-deed, I do not think that in the facts and circumstances of this case I would be justified in issuing a writ of Certiorari quashing the order of the Registrar. A writ of Certiorari being a writ of discretion is issued on in cases where the order sought to be quashed has occasioned a failure of justice. It is not every error of law that would induce this Court to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India. In this case, I am satisfied that nothing has been done by the Registrar which could be said to have caused any injustice to the petitioners. Challenge to the order of Registrar thus fails.
17. During the course of hearing, it has been brought to my notice that FIR No. 107 of 1991, P.S. Ambala City, was registered against the petitioners under Sections 467, 419, 471, 120-B, IPC. and 81 and 82 of the Registration Act, and the challan was put in against the petitioners but the Court seized of the matter has not taken any proceedings because operation of the order of the Registrar had been stayed by the Motion Bench. Since the writ petition is now being dismissed, the Court seized of the criminal case, is directed to conclude the proceedings in the said case expeditiously. Petitioners who have come in possession of the land on the basis of sale-deed dated 15.2.1991 are directed to restore possession of the land in their possession to the legal heirs of Swaran Singh, who in law have become entitled to the estate of the lunatic on his death.
18. Resultantly, the writ petition shall stand dismissed. No costs.
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From this judgment, the Insurance Commissioner appealed to the Court of Appeals. There he contended that the original proceedings, in which the primary receivers petitioned for the appointment of ancillary receivers, was not a bill of complaint and was insufficient to confer jurisdiction upon the District court, cf. McCandless v. Furlaud (C.C.A.) 68 F.(2d) 925;  that the subsequent amendments purporting to state a cause of action against the Corporation, were inoperative to sustain the jurisdiction of the federal court because they were not filed until after the state court had acquired possession of the property; and that the bill, even as amended, did not state a cause of action in which a valid order appointing ancillary receivers could be made.
First. If the jurisdiction of the District Court must rest on diversity of citizenship, it fails because one of the plaintiffs is a citizen of the same state as the defendant. Hooe v. Jamieson, 166 U.S. 395, 17 S.Ct. 596, 41 L.Ed. 1049. The proceeding in the District Court was entitled 'Bertha E. Maurer v. International Re-insurance Corporation'; and that title has been used in all later proceedings in that court, in the Court of Appeals and in this Court. If Bertha E. Maurer had actually been the plaintiff, there would have been diversity of citizenship; for she is a citizen of New Jersey. But, in fact, Bertha E. Maurer was not a party to the application for the appointment of the ancillary receivers; was not later made a party to the suit; and has not appeared at any stage of the proceedings. Her name was used, doubtless, because she was the plaintiff in the suit against the Corporation brought in the Court of Chancery of Delaware in which the primary receivers were appointed.  The application in the case at bar for the appointment of ancillary receivers was made by, and in the name of, the primary receivers. They sue as quasi-assignees claiming to be entitled to the possession of the balance of the California property after its administration by the District Court of California. In the original application filed April 19, 1933 they called themselves petitioners. In the amendments filed six days later, the application is called a 'bill of complaint.' It is so designated in the answer of the Corporation, filed at the same time. We necessarily treat the primary receivers as the plaintiffs.
Second. Apparently this lack of diversity jurisdiction was regarded as immaterial by the Court of Appeals, on the ground that the suit was an ancillary one. For the opinion states: 'Finally it has been held that an ancillary suit in a federal court does not depend on diverse citizenship.' This position is adopted in the brief of the primary receivers, but the contention is unsound. Where the jurisdiction of a Federal District Court is based upon diversity of citizenship, proceedings therein in intervention being ancillary, the jurisdiction rests upon that of the main cause. Cincinnati, etc., R. Co. v. Indianapolis, etc., Ry. Co., 270 U.S. 107, 46 S.Ct. 221, 70 L.Ed. 490. The same rule is applicable to sustain jurisdiction of independent suits which are ancillary to an original suit in the same court. White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018, 40 L.Ed. 67. Whether the rule may ever be applied to a suit brought in a federal court of another district; and whether a suit for the appointment of ancillary receivers in another federal district is an ancillary suit within the meaning of the rule does not appear to have been decided by this Court.  We need not decide either question now. For the rule can have no application where primary receivers appointed by a state court bring a suit for the appointment of ancillary receivers in the federal court for another State. Obviously such an application is not ancillary to any proceedings in any federal court. It is an independent original bill. Being such, it cannot be sustained when diversity of citizenship does not exist and no other ground of federal jurisdiction is shown.
Third. Unlike an objection to venue, lack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties. An appellate federal court must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review.  Mansfield, etc., R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462. Hence, the failure of the Insurance Commissioner to claim, in his petition for certiorari, that the order of the District Court was void for lack of federal jurisdiction of the suit, and his failure otherwise to call to the attention of this Court the lack of diversity of citizenship are immaterial. The Court of Appeals pointed out that under Judicial Code, § 274c (28 USCA § 399), where 'jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought, * * * though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose.' But, in the case at bar, the admitted facts preclude such an amendment. Diversity of citizenship confessedly did not exist.
^1 For disposition of the case by this Court, see 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202.
^2 Similarly, in McCandless v. Furlaud, 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202. the petition for the appointment of ancillary receivers filed by the primary receivers in the federal court for southern New York, bore the title of the suit in the federal court for western Pennsylvania which appointed them.
^3 In Raphael v. Trask, 194 U.S. 272, 278, 24 S.Ct. 647, 48 L.Ed. 973, it is intimated that the jurisdiction of a federal court cannot be based upon an original suit in another federal court. Some of the lower courts have so held. Winter v. Swinburne (C.C.) 8 F. 49, where the subject was fully discussed. Compare United States v. Pedarre (D.C.) 262 F. 839; Sullivan v. Swain (C.C.) 96 F. 259. But see Bluefields S.S.C.o. v. Steele (C.C.A.) 184 F. 584, 587. Compare Trustees System Co. of Pennsylvania v. Payne (C.C.A.) 65 F. (2d) 103, and Walker v. United States Light & Heating Co. (D.C.) 220 F. 393, which concern requisites of equity, rather than federal, jurisdiction.
^4 The order appointing ancillary receivers attacked in McCandless v. Furlaud, 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202, on the ground that the court was without federal jurisdiction, had been entered, not in the suit there under review, but in a separate proceeding in the same court.


D.C. Law Library - D.C. Act 22-163. Fiscal Year 2018 Budget Support Clarification Emergency Amendment Act of 2017.
D.C. Act 22-163. Fiscal Year 2018 Budget Support Clarification Emergency Amendment Act of 2017.
↪ D.C. Act 22-163. Fiscal Year 2018 Budget Support Clarification Emergency Amendment Act of 2017.
To amend, on an emergency basis, the Fiscal Year 2018 Budget Support Act of 2017, the Clean and Affordable Energy Act of 2008, Title 47 of the District of Columbia Official Code, the Homeland Security Risk Reduction and Preparedness Amendment Act of 2006, and the Marion S. Barry Summer Youth Employment Expansion Amendment Act of 2016 to clarify provisions supporting the Fiscal Year 2018 budget; to provide funding for the collective bargaining agreement between the District of Columbia Public Schools and the Washington Teachers' Union and additional funding to District of Columbia public charter schools; and to authorize certain one-time payments to District of Columbia public charter schools.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Fiscal Year 2018 Budget Support Clarification Emergency Amendment Act of 2017".
(1) Subsection (d)(3)(B) is amended by striking the phrase "examiner at set forth" and inserting the phrase "examiner as set forth" in its place.
(2) Subsection (e) is amended by striking the phrase "a determination of an independent hearing examiner" and inserting the phrase "a final decision of the Director" in its place.
""(6) To increase physical activity in schools, the Office of the State Superintendent of Education shall make grants available, subject to the availability of funds in the Fund, through a competitive process or a formula grants process to public schools, public charter schools, or organizations that provide technical assistance to public schools and public charter schools to increase the amount of physical activity in schools; provided, that a school receiving a grant award shall seek to meet the requirements of section 402 of the Healthy Schools Act of 2010, effective July 27, 2010 (D.C. Law 18-209; D.C. Official Code § 38-824.02), and seek to increase the amount of physical activity in which its students engage.".
"(1) Paragraph (16) is amended by striking the phrase "an individual who has never owned eligible property" and inserting the phrase "an individual purchaser who has never owned improved residential real property or an economic interest in a cooperative unit that qualified for the homestead deduction provided pursuant to D.C. Official Code § 47-850 or § 47-850.01" in its place.".
""(17) The phrase "eligible property" means improved residential real property, including an economic interest in a cooperative unit, purchased at an amount not to exceed the purchase ceiling of $625,000 (adjusted annually beginning with real property tax year 2019 by the addition to the prior purchase ceiling of an amount equal to the percentage increase in the Washington, D.C., Standard Metropolitan Statistical Area Consumer Price Index for All Urban Consumers for the preceding calendar year in which the real property tax year begins, rounded to the next lowest multiple of $500), that qualifies for the homestead deduction provided pursuant to D.C. Official Code § 47-850 or § 47-850.01; and the phrase also includes within the purchase ceiling all other real property conveyed on the same deed.".
""(ii) To 2.175% when consideration allocable to the real property is $400,000 or greater.".
""(D) Submit a copy of the homestead deduction application for the eligible property, signed by the applicant."
""(3) The Mayor or the Chief Financial Officer of the District of Columbia may require the applicant to provide such documentation as may be necessary or appropriate to substantiate entitlement to the reduced rate of tax provided under this subsection.".
""(g) Notwithstanding subsection (c) of this section and D.C. Official Code § 47-4421, any subsequent deficiency of recordation tax determined to be owed on a deed taxed at the rate provided under subsection (e) of this section when the deed was accepted for recordation shall be the liability of the grantee or grantees solely and shall not create a lien on the real property that was transferred under such deed.".
"(a) A tax, separate from, and in addition to, the taxes imposed pursuant to §§ 47-2202 and 47-2202.01, is imposed at the rate of 0.3% on the use, storage, or consumption of any room or rooms, lodgings, or accommodations furnished to a transient by any hotel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients.
Sec. 105. Section 3 of the Marion S. Barry Summer Youth Employment Expansion Amendment Act of 2016, effective May 12, 2016 (D.C. Law 21-112; 63 DCR 4326), is repealed.
(1) Subsection (a) is amended by striking the phrase "$9,972 per student for Fiscal Year 2018" and inserting the phrase "$10,257 per student for Fiscal Year 2018" in its place.
Sec. 203. Payments to public charter schools.
This act shall apply as of October 1, 2017.
This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-301.47a).


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The controller processes and stores personal data of the data subject only for the period required to achieve the purpose of the security or, if so required by the European directives and regulations or any other legislator in laws or regulations governed by the controller , was provided. If the purpose of the security is omitted or if a retention period prescribed by the European Directive and / or regulatory authority or any other relevant legislature expires, the personal data will be routinely blocked or deleted in accordance with the statutory provisions.
 The personal data has been collected for such purposes or otherwise processed for which they are no longer necessary.
 The data subject revokes their consent. 6 (1) (a) of the GDPR or Article 9 (2) (a) of the GDPR and there is no other legal basis for the processing.
 The data subject objects to the processing in accordance with Art. 21 (1) GDPR, and there are no legitimate reasons for the processing, or the data subject objects according to Art. 21 (2) GDPR Processing.
 The personal data were processed unlawfully.
 The erasure of personal data is necessary to fulfill a legal obligation under Union or national law to which the controller is subject.
 The personal data were collected in relation to information society services offered in accordance with Art. 8 para. 1 GDPR.
If one of the above reasons is correct and a data subject wishes to arrange for the deletion of personal data held by beauQ UG (limited liability), he may at any time contact an employee of the controller. The employee of beauQ UG (haftungsbeschränkt) will arrange that the request for deletion be fulfilled immediately.
If the personal data has been made public by beauQ UG (haftungsbeschränkt) and if our company is responsible for deleting personal data as the person responsible pursuant to Art. 17 para. 1 GDPR, beauQ UG (haftungsbeschränkt) takes into account the available technology and the implementation costs, including technical means to inform other data controllers processing the published personal data that the data subject has deleted all links to such personal data from or from those other data controllers Copies or replicas of this personal data has requested, as far as the processing is not necessary. The employee of beauQ UG (haftungsbeschränkt) will arrange the necessary in individual cases.
 The accuracy of the personal data is contested by the data subject for a period of time that enables the person responsible to verify the accuracy of the personal data.
 The processing is unlawful, the data subject refuses to delete the personal data and instead requests the restriction of the use of personal data.
 The controller no longer needs the personal data for the purposes of processing, but the data subject requires them to assert, exercise or defend legal claims.
 The person concerned has objection to the processing acc. Art. 21 para. 1 GDPR and it is not yet clear whether the legitimate reasons of the person responsible outweigh those of the person concerned.
If one of the above-mentioned conditions exists and an affected person wishes to request the restriction of personal data stored by beauQ UG (haftungsbeschränkt), they may at any time contact an employee of the controller. The employee of beauQ UG (haftungsbeschränkt) will initiate the restriction of processing.
To assert the right to data portability, the data subject may at any time contact an employee of beauQ UG (haftungsbeschränkt).
BeauQ UG (haftungsbeschränkt) no longer processes the personal data in the event of an objection, unless we can prove compelling legitimate reasons for the processing that outweigh the interests, rights and freedoms of the data subject, or the processing serves the assertion, Exercise or defense of legal claims.
If beauQ UG (haftungsbeschränkt) processes personal data in order to operate direct mail, the data subject has the right to object at any time to the processing of personal data for the purpose of such advertising. This also applies to the profiling, as far as it is associated with such direct mail. If the data subject objects to the beauQ UG (haftungsbeschränkt) of processing for direct marketing purposes, beauQ UG (haftungsbeschränkt) will no longer process the personal data for these purposes.
In addition, the data subject has the right, for reasons arising from his / her particular situation, against the processing of personal data relating to him or her, for beauQ UG (limited) for scientific or historical research purposes or for statistical purposes pursuant to Art. 89 para. 1 GDPR, objections must be lodged unless such processing is necessary to fulfill a task of public interest.
In order to exercise the right to object, the person concerned may directly contact any employee of beauQ UG (limited liability) or another employee. The data subject is also free, in the context of the use of information society services, notwithstanding Directive 2002/58 / EC, to exercise his right of opposition by means of automated procedures using technical specifications.
If the decision (1) is required for the conclusion or performance of a contract between the data subject and the controller or (2) it takes place with the explicit consent of the data subject, the beauQ UG (limited) takes appropriate measures to safeguard the rights and freedoms and the legitimate interests of the data subject, including at least the right to obtain the intervention of a person by the controller, to express his / her own position and to challenge the decision.

matches:
Art. 6
§ 7
§ 8
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 21
Art. 21
Art. 8
Art. 17
Art. 21
Art. 89


U.S. Dept. of State, Background Note: Suriname, http://www.state.gov/r/pa/ei/bgn/1893.htm, Nov. 17, 2009.
 Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 61, Oxford University Press, 4th ed., 2008; Amnesty Intl., Death Penalty: Countries Abolitionist in Practice, http://www.amnesty.org/en/death-penalty/countries-abolitionist-in-practice, last accessed Oct. 7, 2010; U.N. ECOSOC, Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, Report of the Secretary-General, p. 64, U.N. Doc. E/2010/10, Dec. 18, 2009.
 Altaafahmad, Doodstraf een nader beschouwing, Dagblad Suriname, http://www.dbsuriname.com/archief/vrije_tribune/2006/apr06/210406vrijetribune.asp, Apr. 21, 2006; Ivan Cairo, Doodsvonnis kan juridische conflicten brengen, De Ware Tijd, http://www.dwtonline.com/website/nieuws.asp?menuid=37&id=60127, May 21, 2009.
 Amnesty Intl., When the State Kills, p. 210, Amnesty Intl. Publications, 1989.
 Ivan Cairo, Doodsvonnis kan juridische conflicten brengen, De Ware Tijd, http://www.dwtonline.com/website/nieuws.asp?menuid=37&id=60127, May 21, 2009.
 Ivan Cairo, Doodsvonnis kan juridische conflicten brengen, De Ware Tijd, http://www.dwtonline.com/website/nieuws.asp?menuid=37&id=60127, May 21, 2009; Altaafahmad, Doodstraf een nader beschouwing, Dagblad Suriname, http://www.dbsuriname.com/archief/vrije_tribune/2006/apr06/210406vrijetribune.asp, Apr. 21, 2006; U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 22, para. 123, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003. See also U.N. ICCPR Human Rights Committee, Consideration of reports submitted by states parties under article 40 of the covenant, Concluding observations of the Human Rights Committee, Suriname, p. 3, para. 10, U.N. Doc. CCPR/CO/80/SUR, May 4, 2004.
Premeditated murder  and murder to further or facilitate another offense  are punishable by death.
By December 2010, we were not able to locate complete versions of the penal codes (civil and military) and had to rely on partial statutory sources and secondary sources.
Although our research is not absolutely conclusive, we found no statutory evidence of a mandatory death penalty in Suriname.
When an offense is committed by a minor aged between 16 and 18 years old, the maximum sentence is of 15 years imprisonment.  Additionally, Suriname is party to the ICCPR,  the Convention on the Rights of the Child  and the American Convention on Human Rights,  which prohibit the execution of individuals for crimes committed while under the age of 18.
Under the Penal Procedure Code, death sentences cannot be carried out on pregnant women.  Additionally, Suriname is party to the ICCPR  and the American Convention on Human Rights  which prohibit the execution of pregnant women.
Suriname is party to the American Convention on Human Rights  which prohibits the execution of individuals who were over the age of 70 at the time of the crime.
 Penal Code of Suriname, art. 349, extracts available on http://www.juspolsuriname.org/, last accessed Nov. 25, 2010.
 Penal Code of Suriname, art. 348, extracts available on http://www.juspolsuriname.org/, last accessed Nov. 25, 2010.
 Altaafahmad, Doodstraf een nader beschouwing, Dagblad Suriname, http://www.dbsuriname.com/archief/vrije_tribune/2006/apr06/210406vrijetribune.asp, Apr. 21, 2006; Altaafahmad, Doodstraf een nader beschouwing, Dagblad Suriname, http://www.dbsuriname.com/archief/vrije_tribune/2006/apr06/210406vrijetribune.asp, Apr. 21, 2006.
 Altaafahmad, Doodstraf een nader beschouwing, Dagblad Suriname, http://www.dbsuriname.com/archief/vrije_tribune/2006/apr06/210406vrijetribune.asp, Apr. 21, 2006.
 Penal Code of Suriname, extracts available on http://www.juspolsuriname.org/, last accessed Nov. 25, 2010. See for instance arts. 348 and 349; Amnesty Intl., When the State Kills, p. 210, Amnesty Intl. Publications, 1989.
 Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 279, Oxford University Press, 4th ed., 2008.
 Altaafahmad,Doodstraf een nader beschouwing, Dagblad Suriname, http://www.dbsuriname.com/archief/vrije_tribune/2006/apr06/210406vrijetribune.asp, Apr. 21, 2006; U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 25, para. 145, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003.
 Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4〈=en, last accessed Aug. 20, 2010.
 Status, Declarations, and Reservations, Convention on the Rights of the Child, 1577 U.N.T.S. 3, Nov. 20, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-11&chapter=4〈=en#Participants , last accessed Nov. 25, 2010.
 Status, Declarations, Reservations, Denunciations, Withdrawals, B-32: Amer. Conv. on Human Rights, Pact of San Jose, Costa Rica, Nov. 22, 1969, http://cidh.oas.org/basicos/english/basic4.amer.conv.ratif.htm, last accessed Oct. 7, 2010.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 25, para. 145, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003.
 Penal Code of Suriname, art. 55, extracts available on http://www.juspolsuriname.org/, last accessed Nov. 25, 2010.
 Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4〈=en, last accessed Aug. 20, 2010.
 Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4〈=en, last accessed Aug. 20, 2010.
 Status, Declarations, Reservations, Denunciations, Withdrawals, A-53: Prot. to the Amer. Conv. on Human Rights to Abolish the Death Penalty, Jun. 8, 1990, http://cidh.oas.org/basicos/english/basic8.death%20penalty%20ratif.htm, last accessed Oct. 7, 2010.
The President and government are supporting the abolition of the death penalty in Suriname, but face some popular opposition.  However, they have decided to make abolition of the death penalty one of the innovations of the new Penal Code  which is under review by the National Assembly. The Council of Ministers drafted a bill regarding the revision of the first part of the Penal Code in May 2009, providing for the abolition of the death penalty and a corresponding increase of the maximum sentence of imprisonment to 30 years.  The bill was approved by the National Assembly on June 13, 2009.  As of November 17, 2010, the death penalty was still on the books in Suriname,  indicating that the revision of the second and third parts of the Penal Code has not yet been completed.
No. In 2007, Suriname voted against the U.N.G.A. resolution on a moratorium  and signed the Note Verbale of dissociation.  In 2008 Suriname abstained during the vote  and did not sign the Note.  However, we found no report of an official moratorium.
During our research we did not find any significant cases concerning the death penalty in Suriname.
During our research we did not find any easily accessible source of Surinamese jurisprudence.
 Constitution of the Republic of Suriname, art.9, 1987, as amended by the law of Apr. 8, 1992.
 Constitution of the Republic of Suriname, art.14, 1987, as amended by the law of Apr. 8, 1992.
 Constitution of the Republic of Suriname, art.106, 1987, as amended by the law of Apr. 8, 1992.
 Ivan Cairo, Doodsvonnis kan juridische conflicten brengen, De Ware Tijd, http://www.dwtonline.com/website/nieuws.asp?menuid=37&id=60127, May 21, 2009; Waterkant, Regering gevraagd doodstraf niet te schrappen, http://www.waterkant.net/suriname/2006/06/17/regering-gevraagd-doodstraf-niet-te-schrappen/, Jun. 17, 2006.
 Ministerie van Justitie & Politie, Persbericht 24/09, http://www.juspolsuriname.org/, May 19, 2009.
 Mi Bari, Doodstraf geschrapt uit strafwet, http://www.mibari.com/wordpress/2009/06/13/doodstraf-geschrapt-uit-strafwet/, Jun. 13, 2009; Waterkant, Doodstraf definitief uit strafwetgeving Suriname, http://www.waterkant.net/suriname/2009/06/11/doodstraf-definitief-uit-strafwetgeving-suriname/, Jun. 11, 2009.
 Information Services of the National Assembly of Suriname, email to DPW, Nov. 17, 2010.
 Constitution of the Republic of Suriname, art.109, 1987, as amended by the law of Apr. 8, 1992.
 U.S. Dept. of State, 2009 Human Rights Report: Suriname, Denial of Fair Public Trial, http://www.state.gov/g/drl/rls/hrrpt/2009/wha/136127.htm, Mar. 11, 2010.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 18, para. 83, p. 34, para. 211, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003.
 Law of Suriname houdende goedkeuring van de Overeenkomst betreffende de Instelling van het Caraibisch Hof van Justitie, Mar. 10, 2003. See also the website of the Caribbean Court of Justice: http://www.caribbeancourtofjustice.org/default.htm.
 Status, Declarations, Reservations, Denunciations, Withdrawals, B-32: Amer. Conv. on Human Rights, Pact of San Jose, Costa Rica, Nov. 22, 1969, http://cidh.oas.org/basicos/english/basic4.amer.conv.ratif.htm, last accessed Oct. 7, 2010; Inter-American Court of Human Rights, Decisions and Judgments, http://www.corteidh.or.cr/pais.cfm?id_Pais=11&CFID=770539&CFTOKEN=83148333, last accessed Dec. 5, 2010.
During our research we could not ascertain how many people are sentenced to death in Suriname or where they are incarcerated. One news article suggests that there have been no legal death sentences since 1927.  However, the following observations relate to prison conditions as a whole.
As of November 2010, we could not find any evidence that foreign nationals are currently under sentence of death in Suriname.
As of November 2010, we could not find any evidence that women are currently under sentence of death in Suriname.
As of November 2010, we could not find any reports that individuals are currently under sentence of death who may have been under the age of 18 at the time the crime was committed.
As of November 2010, we could not find any reports on the racial/ethnic composition of prisoners on death row.
Under Article 12 of the Constitution, everyone has the right to legal assistance before the courts.  In a 2003 report, the Surinamese authorities declared that “if during a session of the criminal court, it becomes clear that the accused has no attorney and that the State did not provide for one, the judge handling the case will immediately appoint an attorney on behalf of the accused. This is a standard practice of the Judiciary that is aware of the long bureaucratic procedure before an attorney is appointed to an accused.”  In the same report, the authorities said that they had adjusted the payments made to the assigned lawyers.  However, in a 2005 report, they admitted that lawyers assigned by the Examining Magistrate to juvenile offenders often “do not appear during trial, possibly because of their low remuneration.”  Juveniles do not face the death penalty but this statement raises questions as to whether defense attorneys are adequately compensated in all cases.
Under Article 12 of the Constitution, everyone has the right to legal assistance before the courts.  As of November 2010, we could not find any reports on the legal aid system on appeal.
 Amnesty Intl., Dossier Suriname, http://www.amnesty.nl/landen_dossier/5691, last accessed Nov. 22, 2010; U.S. Dept. of State, 2009 Human Rights Report: Suriname, http://www.state.gov/g/drl/rls/hrrpt/2009/wha/136127.htm, Mar. 11, 2010.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Suriname, Replies by the Government of Suriname on the concluding observations of the Human Rights Committee (CCPR/CO/80/SUR), p. 3, para. 7, U.N. Doc. CCPR/C/SUR/CO/2/Add.1, Jul. 10, 2008.
 Constitution of the Republic of Suriname, art.12, 1987, as amended by the law of Apr. 8, 1992.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 29, para. 172, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 29, para. 171, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003.
 U.N. Convention on the Rights of the Child Committee on the Rights of the Child, Consideration Of Reports Submitted By States Parties Under Article 44 Of The Convention, Second periodic reports of States parties due in 2000, Suriname, p. 50, para. 164, U.N. Doc. CRC/C/SUR/2, Nov. 24, 2005.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Second Periodic Report, Suriname, p. 19, para. 91, U.N. Doc. CCPR/C/SUR/2003/2, Jul. 4, 2003.
 U.N. ICCPR Human Rights Committee, Consideration of reports submitted by states parties under article 40 of the covenant, Concluding observations of the Human Rights Committee, Suriname, p. 3, para. 10, U.N. Doc. CCPR/CO/80/SUR, May 4, 2004.
 U.N. ICCPR Human Rights Committee, Consideration of reports submitted by states parties under article 40 of the covenant, Concluding observations of the Human Rights Committee, Suriname, p. 3, para. 11, U.N. Doc. CCPR/CO/80/SUR, May 4, 2004.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Suriname, Replies by the Government of Suriname on the concluding observations of the Human Rights Committee (CCPR/CO/80/SUR), p. 2, para. 3, U.N. Doc. CCPR/C/SUR/CO/2/Add.1, Jul. 10, 2008.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Suriname, Replies by the Government of Suriname on the concluding observations of the Human Rights Committee (CCPR/CO/80/SUR), p. 2, para. 5, U.N. Doc. CCPR/C/SUR/CO/2/Add.1, Jul. 10, 2008.
 U.N. ICCPR Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The Covenant, Suriname, Replies by the Government of Suriname on the concluding observations of the Human Rights Committee (CCPR/CO/80/SUR), p. 2, para. 6, U.N. Doc. CCPR/C/SUR/CO/2/Add.1, Jul. 10, 2008.
 U.N. ICCPR Human Rights Committee, Consideration of reports submitted by states parties under article 40 of the covenant, Concluding observations of the Human Rights Committee, Suriname, p. 4, para. 15, U.N. Doc. CCPR/CO/80/SUR, May 4, 2004.
 UPR-info.org, Suriname, http://www.upr-info.org/-Suriname-.html, last accessed Nov. 25, 2010.


37 C.F.R. 1.121 Manner of making amendments in applications.
(d) Drawings. One or more application drawings shall be amended in the following manner: Any changes to an application drawing must be in compliance with § 1.84 or, for a nonprovisional international design application, in compliance with §§ 1.84(c) and 1.1026 and must be submitted on a replacement sheet of drawings which shall be an attachment to the amendment document and, in the top margin, labeled "Replacement Sheet." Any replacement sheet of drawings shall include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is amended. Any new sheet of drawings containing an additional figure must be labeled in the top margin as "New Sheet." All changes to the drawings shall be explained, in detail, in either the drawing amendment or remarks section of the amendment paper.
37 C.F.R. 1.85 Corrections to drawings.
(a) A utility or plant application will not be placed on the files for examination until objections to the drawings have been corrected. Except as provided in § 1.215(c), any patent application publication will not include drawings filed after the application has been placed on the files for examination. Unless applicant is otherwise notified in an Office action, objections to the drawings in a utility or plant application will not be held in abeyance, and a request to hold objections to the drawings in abeyance will not be considered a bona fide attempt to advance the application to final action (§ 1.135(c) ). If a drawing in a design application meets the requirements of § 1.84(e), (f), and (g) and is suitable for reproduction, but is not otherwise in compliance with § 1.84, the drawing may be admitted for examination.
(b) The Office will not release drawings for purposes of correction. If corrections are necessary, new corrected drawings must be submitted within the time set by the Office.
(c) If a corrected drawing is required or if a drawing does not comply with § 1.84 or an amended drawing submitted under § 1.121(d) in a nonprovisional international design application does not comply with § 1.1026 at the time an application is allowed, the Office may notify the applicant in a notice of allowability and set a three-month period of time from the mail date of the notice of allowability within which the applicant must file a corrected drawing in compliance with § 1.84 or 1.1026, as applicable, to avoid abandonment. This time period is not extendable under § 1.136 (see § 1.136(c) ).
See also MPEP § 608.02(b). For correction at allowance and issue, see MPEP § 608.02(w) and MPEP § 1302.05.
A canceled figure may be reinstated. An amendment should be made to the specification adding the brief description of the view if a canceled figure is reinstated.
The following form paragraphs may be used to notify applicants of drawing corrections.
The United States Patent and Trademark Office does not make drawing changes. It is applicant’s responsibility to ensure that the drawings are corrected. Corrections must be made in accordance with the instructions below.
This form paragraph is to be used whenever the applicant has filed a request for the Office to make drawing changes. Form paragraph 6.40 must follow.
Drawing changes must be made by presenting replacement sheets which incorporate the desired changes and which comply with 37 CFR 1.84. An explanation of the changes made must be presented either in the drawing amendments section, or remarks, section of the amendment paper. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either "Replacement Sheet" or "New Sheet" pursuant to 37 CFR 1.121(d). A replacement sheet must include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of the amended drawing(s) must not be labeled as "amended." If the changes to the drawing figure(s) are not accepted by the examiner, applicant will be notified of any required corrective action in the next Office action. No further drawing submission will be required, unless applicant is notified.
Identifying indicia, if provided, should include the title of the invention, inventor’s name, and application number, or docket number (if any) if an application number has not been assigned to the application. If this information is provided, it must be placed on the front of each sheet and within the top margin.
A marked-up copy of any amended drawing figure, including annotations indicating the changes made, may be submitted or required by the examiner. The annotated drawing sheets must be clearly labeled as "Annotated Sheet" and must be presented in the amendment or remarks section that explains the change(s) to the drawings.
Applicant is required to submit acceptable corrected drawings within the time period set in the Office action. See 37 CFR 1.85(a). Failure to take corrective action within the set period will result in ABANDONMENT of the application.
If corrected drawings are required in a Notice of Allowability (PTOL-37), the new drawings MUST be filed within the THREE MONTH shortened statutory period set for reply in the "Notice of Allowability." Extensions of time may NOT be obtained under the provisions of 37 CFR 1.136 for filing the corrected drawings after the mailing of a Notice of Allowability.
Applicant is reminded that the U.S. Patent and Trademark Office does not make drawing changes and that it is applicant’s responsibility to ensure that the drawings are corrected in accordance with the instructions set forth in the paper mailed on .
This form paragraph is to be used when the applicant has been previously provided with information on how to effect drawing changes.
Applicant is reminded that in order to avoid an abandonment of this application, the drawings must be corrected in accordance with the instructions set forth in the paper mailed on .
This form paragraph is to be used when allowing the application and when applicant has previously been provided with information on how to effect drawing changes.
The drawings filed on  are acceptable subject to correction of the informalities indicated below. In order to avoid abandonment of this application, correction is required in reply to the Office action. The correction will not be held in abeyance.
1. Use this form paragraph when allowing the application, particularly at time of first action issue. Supply an explanation of drawings informalities (see MPEP § 608.02(b), § 608.02(d) - § 608.02(h) and § 608.02(p)).
2. Form paragraph 6.40 or 6.41 must follow.
The following changes to the drawings have been approved by the examiner and agreed upon by applicant: . In order to avoid abandonment of the application, applicant must make these agreed upon drawing changes.
1. In bracket 1, insert the agreed upon drawing changes.
2. Form paragraphs 6.39 and 6.40 must follow.


If your landlord does not make repairs after you have either notified her in writing or she has been ordered by the Board of Health to make repairs, you may need to consider other options, such as withholding your rent, making repairs and deducting the cost from your rent, working with other tenants to put pressure on the landlord, taking your landlord to court, or breaking your lease. What you can and want to do will depend on your situation. Once you inform yourself of the options, you may want to consult with a tenant advocacy organization or lawyer (see Directory).
Tenants have a right to withhold rent because landlords are obligated to provide safe and habitable housing under the warranty of habitability. If a landlord breaks this obligation, a tenant's obligation to pay the full amount of rent stops until repairs are made.45 A tenant may want to withhold all or part of the rent, depending on the seriousness of the violations.46 The law does not state how much or for how long you can withhold.
If you are considering withholding your rent, it is very important that you do it right. Before you begin to withhold, read the next sections in this chapter very carefully. Use the sample Rent Withholding Letter (Form 12).
If you are living in a hotel or motel or have lived in a rooming house for less than 3 consecutive months, you do not have the right to withhold your rent to get the landlord to make repairs. For more information about the rights of rooming house tenants, see Chapter 15: Rooming Houses.
Before you can withhold rent, you must meet certain requirements.47 If you can answer yes to all five of the questions below, you have met these requirements and can legally withhold your rent.
If you answer yes to all five questions, you can legally withhold your rent and your landlord cannot evict you—although she may try. If a landlord tries to evict you and you have properly withheld your rent, your landlord may be violating other laws. See Chapter 12: Evictions - Retaliatory Evictions.
Rent withholding is the most direct way that you can force your landlord to make repairs. More often than not, it is also the most successful tactic. It is particularly successful in a building where tenants agree to join together to withhold their rent. See Chapter 10: Getting Organized about how to organize a rent withholding campaign.
How much of the withheld rent you will return (if any) once repairs are properly completed.
The right to withhold does not mean that you have a right to live in your apartment rent-free. Rent withholding is a way to get the landlord to make repairs. Once a landlord makes repairs, you must resume paying rent.
The best way to protect yourself while you are withholding rent is to take your rent money and set it aside in a bank account separate from any other bank account that you have. (Do not keep cash in your apartment.) Although the law does not require you to put your rent in a bank, there are several reasons why this is a good idea.
First, if your landlord tries to evict you, you can show the court that you had the money to pay rent and you did not simply stop paying because you were unable to pay. Setting up a separate bank account will also strengthen your case and give you more credibility in the eyes of a judge if you take the landlord to court or the landlord attempts to evict you.
Second, if a judge eventually orders you to pay some or all of the withheld rent to the landlord, you will have this money available. If you don't pay, you can be evicted. It is very unusual that a judge would find that the conditions are so bad that you would be entitled to withhold all (100%) of your rent, which is why it is so important to have that rent money set aside.
Legally, once your landlord makes repairs, you do not automatically have to give the landlord back any of the rent you have withheld. Only a judge can order you to do this. You may decide to keep some or all of the rent you withheld because of the impact these conditions had on your use of the apartment. If your landlord decides to take you to court to get back the withheld rent, explain to the judge how the conditions affected you and your family. Depending on the situation, a judge may decide you can keep part or all of the withheld rent.48 To try to avoid court and eviction, you can also negotiate with the landlord to try to agree on a fair sum to be given to the landlord for the period when you lived with the bad conditions.
Use the sample Rent Withholding Letter (Form 12) to notify your landlord about the bad conditions.
A copy of a housing inspection report that accurately describes code violations is the best way to document violations of the state Sanitary Code. It is also proof that the landlord knew about the conditions.49 Again, if you have a camera or video camera (or can borrow one), take pictures of the bad conditions ideally with a date and time stamp. If you print out the pictures write the date and time they were taken on the back of the picture. A good picture will be worth a thousand words if you need to prove that bad conditions exist.
If a landlord wants to evict you, she must go to court and get permission from a judge. If a judge finds that you have followed all the requirements under the rent-withholding law, you will have a legal defense to the eviction.50 This means a judge should not give the landlord permission to evict you and you can stay in your home. You may also have a legal claim against her for money damages. See Chapter 12: Evictions for more about evictions and Chapter 13: When to Take Your Landlord to Court for more information about other legal claims.
A judge may also order you to pay an amount called the fair rental value to the court. The fair rental value is the value of your apartment with all its problems and code violations51 (see box following this section). If a judge orders you to pay money to the court, ask the judge also to order the landlord to fix all defective conditions. Ideally, you want the court to hold onto your rent money until a landlord has made repairs. Although a court can decide to give your landlord permission to use the money you pay to the court to make repairs, you can ask the judge to hold a hearing before returning this money to the landlord.52 This will give you a chance to tell the judge if the landlord has fixed any of the problems.
Because your stove doesn't work, your toilet is broken, water leaks through the ceiling, and the landlord refuses to give you a smoke detector, you withhold all of your rent. Your rent is $900 per month.
Before you start to withhold, you notify your landlord in writing about all of these conditions and get a housing inspection report. You also put your rent money aside in the bank.
After 3 months of withholding rent(a total of $2,700), your landlord decides to try to evict you instead of making repairs. She files an eviction case in court based on nonpayment of rent. After hearing both sides of the case, a judge finds that you properly withheld your rent. The judge also finds that during the 3 months you withheld your rent, the fair rental value of your apartment with all of the code violations was $450 per month, as opposed to the $900 per month that you were being charged.
The court will then send you a notice saying you owe $1,350 for the 3 months you withheld rent plus court costs. If you pay this amount to the court within 7 days of receiving this notice, you can stay in your home. You also get to keep the other $1,350 you withheld.
If you do not pay the $1,350 plus court costs within the 7 days, the landlord is entitled to evict you. This is why it is so important to set the rent aside in a separate bank account.
Under certain conditions, tenants in Massachusetts have the legal right to make repairs and deduct up to 4 months' rent to pay for them.55 This is referred to as "repair and deduct." The advantage of choosing to repair and deduct is that the repairs get done. The disadvantage is that you are taking responsibility for making sure that the repairs are done well. See the sample Repair and Deduct Letter (Form 13).
To be able to deduct the cost of repairs from your rent, certain conditions must be met. If you can answer yes to all five questions below, you can repair and deduct.
You are allowed by law to repair anything in your apartment or in the common areas of your building. If there are violations that affect several apartments or an entire building, a group of tenants can get together and have the repairs made. Make sure, however, that everyone is in agreement, that you have a certified Board of Health report documenting the problems, and that you have given your landlord written notice of the violations. Each and every tenant can then deduct up to 4 months' rent for her share of the total.
For example, you and other tenants may get the boiler in your building fixed, and then all affected tenants can subsequently deduct up to 4 months of rent, depending on how much the repair cost.
Repairs for minor code violations, such as screens, small leaks, or small holes in the walls, will probably not be found reasonable by the court unless there are so many of them that you can prove that the overall effect is dangerous.60 This is difficult to do.
If other tenants in your building or community face bad conditions, there are ways to work together to improve everyone's living conditions. Tenants can all agree to withhold rent until the landlord makes repairs. A group of tenants can ask a judge to order the landlord to make repairs. If the landlord absolutely refuses to fix the bad conditions, tenants can ask a court to appoint a temporary landlord called a receiver in order to make repairs. For more see section in this chapter called Receivership. Tenants can also organize and together put pressure on the local Board of Health to inspect their apartments and enforce the state Sanitary Code and local health ordinances.
will give you information about how to begin to organize tenants. It will also give you specific organizing steps you can take to get repairs made.
If you move out early, your landlord may try to sue you for moving early and for the balance of the rent due under any lease. For this reason, before you move out, it is wise to obtain a Board of Health report as proof of the violations in your apartment.
If violations are not serious, you may be held responsible for paying the rent if you leave without proper notice.
When you move out because of serious violations, you are entitled to get back your security deposit. If you have to go to court to get your deposit back, you might have to prove that the conditions in your apartment were severe enough to permit your leaving. For more information about getting security deposits back and moving out, see Chapter 3: Security Deposits and Last Month's Rent and Chapter 11: Moving Out.
Fine your landlord or put your landlord in jail for violating the law.
Appoint a temporary landlord called a receiver to make repairs.
The benefits of bringing a tenant petition are that it may be a safe way for you to get repairs made without having to withhold rent and the court filing fee is low.64 If you withhold your rent, you may have to go to court to defend yourself against an eviction. If you file a tenant petition, you—not your landlord—are bringing the matter before a judge. A tenant petition also puts you in a better position to negotiate what you want with the landlord. For more about negotiating, see Chapter 14: Using the Court System - Negotiating a Good Settlement and Chapter 10: Getting Organized - Negotiating a Solution with the Landlord.
If you want a judge to order your landlord to make emergency repairs, you can file a complaint and ask a court to issue an injunction.68 An injunction is an order from the court that tells your landlord to take immediate action to correct a problem or to stop doing something that is illegal. For example, a judge can order your landlord to immediately fix the heating system.
In most cases, tenants request an emergency order called a temporary restraining order or TRO when they first go to court and file the complaint. Because this is an emergency, you may request a TRO without first notifying the landlord. See a Temporary Restraining Order (Form 15).
If a judge gives you a TRO, it is good for only a short period of time—the maximum is 10 days. If you need an order to last longer than 10 days, you must ask the court to schedule another hearing where you can request what is called a preliminary injunction. A preliminary injunction is an order that can cover a longer period of time. If you use Form 15, you can ask for a hearing for a preliminary injunction at the same time you ask for a TRO.
If you get a TRO from the judge, take a copy of it to a sheriff's or constable's office immediately. A sheriff or constable must serve it on your landlord. A TRO is not good unless your landlord has knowledge of it. If your landlord refuses to obey a TRO, you should go back to court and tell the judge. If a judge finds that your landlord has not obeyed the TRO, the landlord may be held in contempt and can be arrested and fined.
When you file the complaint to seek a TRO and preliminary injunction, you will also need to pay the filing and service fees. If you cannot afford these fees, you can ask the court to waive or eliminate the filing fee and to pay the service fee. To do this use the Affidavit of Indigency form (Booklet 9).
It may put more pressure on the landlord to make repairs.
If the Board of Health brings the criminal complaint, you may not have to go to court because the inspector can present all the necessary evidence.
The major disadvantage of a criminal action is that you lose control over the case. The Assistant District Attorney or the City's Attorney will prosecute the case. You or your lawyer do not control the day-to-day direction of the suit. Also, you must be willing and able to appear in court, sometimes on a week-to-week basis, if you are the person bringing the complaint. You may get quicker results if you file a civil complaint or a tenant petition.
The second type of case is where the landlord fails to provide heat, hot water, or other utilities or interferes with your quiet enjoyment. Only tenants who are affected by the landlord's illegal behavior can file this type of criminal complaint. To bring this type of complaint, you do not need a Board of Health inspection, although it is very helpful. In addition to fining your landlord, a judge can also sentence a landlord to serve up to 6 months in jail for violation of the law of quiet enjoyment.
Each of these legal claims is described in Chapter 13: When to Take Your Landlord to Court. As you read, you may discover that your landlord has violated other laws. Before you decide to bring a lawsuit against your landlord, you need to carefully evaluate the strength of your case.
44 . G.L. c. 239, §8A. Because this law has been amended many times, be sure you have the current version.
45 . Boston Housing Auth. v. Hemingway, 363 Mass. 184 (1973); Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979).
46 . See Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979).
47 . G.L. c. 239, §8A.
48 . G.L. c. 239, §8A.
49 . G.L. c. 239, §8A.
50 . G.L. c. 239, §8A.
51 . Darmetko v. Boston Housing Auth., 378 Mass. 758 (1979); McKenna v. Begin, 5 Mass. App. Ct. 304 (1977).
52 . G.L. c. 239, §8A.
53 . G.L. c. 239, §8A.
54 . The court costs are the filing fee ($135 in Housing Court and $195 in District Court); $5.00 for the summons; and the costs of service of the complaint (which varies but is generally about $30-$40 per defendant), so the total is around $170 - $240.
55 . G.L. c. 111, §127L is the basis for the entire repair and deduct section. See also 940 C.M.R. §3.17(1)(h).
56 . The part of the state Sanitary Code at 105 C.M.R. §410.750 sets out those conditions which are automatically considered to "endanger or materially impair the health or safety, and well-being" of the tenant.
57 . G.L. c. 111, §127L (¶3).
58 . G.L. c. 111, §127L (¶3).
59 . G.L. c. 111, §127L (¶3).
60 . See McKenna v. Begin, 5 Mass. App. Ct. 304 (1977).
61 . Boston Housing Auth. v. Hemingway, 363 Mass. 184 (1973). Under the repair and deduct statute, G.L. c. 111, §127L (¶1, last sentence), tenants may break the tenancy or lease agreement, pay only the fair rental value, and vacate the premises in a reasonable period of time.
62 . The superior, housing, and district courts are explicitly given the power to appoint receivers under G.L. c. 111, §127I. Housing courts' jurisdiction is reaffirmed by G.L. c. 185C, §3. District courts have authority under G.L. c. 218, §19C.
63 . G.L. c. 111, §127C.
64 . See endnote 79 as to the costs.
65 . G.L. c. 111, §127F.
66 . G.L. c. 111, §127F.
67 . G.L. c. 111, §127B.
68 . G.L. c. 111, §127I explicitly gives the power to grant injunctions and temporary restraining orders to the superior courts, housing courts, and district courts. Housing courts also have the power under G.L. c. 185C, §3. District courts likewise have the power to grant injunctive relief necessary to enforce G.L. c. 111, §§127A-127K under G.L. c. 218, §19C.
69 . Commonwealth v. Haddad, 364 Mass. 795 (1974).
70 . Commonwealth v. Haddad, 364 Mass. 795 (1974), explains the legal basis for a citizen's complaint for code violations.
71 . 105 C.M.R. §400.700.
72 . G.L. c. 218, §21. You can, however, sue for treble damages in small claims court, even though the trebled amount may be more than $7,000. A small claims case is heard by a magistrate (and not a judge) and the plaintiff does not have the right to appeal if unhappy with the decision.
73 . G.L. c. 111, §§127B-127O sets forth the relevant provisions regarding receivership. See also Mass. R. Civ. P. Rule 66. For additional information on receiverships, see the Mass. Attorney General's Abandoned Housing Training Manual and "How to Take the Distress Out of Abandoned Housing (Mass. Continuing Legal Education, 1998).