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Sep 10, 2013

Landlord-Tenant Evictions: Courts and Litigation


Category: Business

  1. Types of Tenancies/Grounds for Eviction.  Maine’s Landlord-Tenant law is contained in Title 14 of the Maine Revised Statutes.  Among other things, the law sets forth the procedure for evicting Tenants, particularly Tenants whose tenancy is not subject to a lease.  The process for terminating a tenancy and evicting a Tenant initially turns on whether the tenancy is subject to a lease or is a tenancy at will.   
    1. Tenants at Will - 14 M.R.S.A. §6002.  This is the statute that governs a tenancy where there is no written lease.  Many times there are “hybrid” leases that attempt to be a tenancy at will but in fact can be considered leases subject to a lease term.  If it looks like a lease (i.e. specific procedures of termination, a set term), it is most likely a lease.
    2. Tenancy Subject to a Lease.  If there is a written lease, the language of the lease governs when, how, and if the Landlord can evict the Tenant and under what grounds.
    3. Leases without Termination or Notice Language.  Leases without specific termination or notice language may now be terminated with proper notice.  This change was the result of a delayed reaction to an almost 30-year-old Law Court case, Rubin v. Josephson, 478 A.2d 665 (Me. 1984).  The Rubin case held that, when a residential lease does not contain termination language, the Landlord may not use the tenancy-at-will provisions of state law to terminate the lease.  A relatively new law overturned this decision.  Although the bill for this amendment was entitled, “An Act to Provide a Remedy to Property Owners When a Tenant Defaults on a Lease,” the law provides relief to both Landlords and Tenants with leases that do not contain termination provisions or notice language.  Under the law, a Landlord may terminate a lease with 7 days’ notice for failure to pay rent or for appropriate “for-cause” grounds, even if the lease does not contain language providing for termination in such circumstances.  Similarly, a Tenant may terminate a lease lacking termination language upon 7 days’ notice to the Landlord in cases where the Landlord has materially breached a provision of the lease.  14 M.R.S.A. §6001(1-B).  The notice must state that the tenant has the right to contest the termination in court.
  2. Notices of Termination of Tenancy and/or Lease Termination.  If a Tenant has defaulted on terms of the rental agreement, then the Landlord will need to send a Notice of Termination of Tenancy.  The type of notice to serve depends on the type of tenancy.  Generally speaking, Tenants are either leasehold Tenants or Tenants-at-Will.  If they are Tenants-at-Will, the termination is governed by Maine’s Landlord-Tenant Statute.  If they are leasehold Tenants, terminations are generally handled in accordance with the terms of the lease.
    1. Tenants at Will - 14 M.R.S.A §6002.  Maine’s Landlord-Tenant law is contained in Title 14 of the Maine Revised Statutes.  If a Tenant-at-Will has violated the terms of the tenancy, and you decide to evict them, you must comply with these laws.
      1. Non-Payment of Rent – 7 Day Notice of Termination of Tenancy. If the violation is failure to pay rent when due, you must send a notice to pay or quit.  The payment must be at least seven days past due.  The notice must indicate the amount of rent that is 7 days or more in arrears as of the date of the notice.  IT MUST ALSO INCLUDE THE FOLLOWING LANGUAGE:  “If you pay the amount of rent due as of the date of this notice before this notice expires, then this notice as it applies to rent arrearage is void.  After this notice expires, if you pay all rental arrears, all rent due as of the date of payment and any filing fees and service of process fees actually paid by the Landlord before the writ of possession issues at the completion of the eviction process, then your tenancy will be reinstated.”  Failure to include this language is fatal. Furthermore, a recent legislative change requires the Landlord to include a statement that “the Tenant has a right to contest the termination in court.”  If the Landlord fails to include language required by this paragraph in a notice to terminate, it could be grounds for dismissal of the forcible entry and detainer action.  Furthermore, if the Tenant does not appear at the court hearing, the Landlord's failure to include the required language in the notice constitutes sufficient grounds to set aside any default judgment entered against the Tenant for failure to appear at the court hearing. 
      2. Other Causes.  A 7-day notice of termination can also be given if the Landlord can show that “the Tenant, the Tenant's family or an invitee of the Tenant has caused substantial damage to the demised premises that the Tenant has not repaired or caused to be repaired before the giving of the notice provided in this subsection” or “the Tenant, the Tenant's family or an invitee of the Tenant caused or permitted a nuisance within the premises, has caused or permitted an invitee to cause the dwelling unit to become unfit for human habitation or has violated or permitted a violation of the law regarding the tenancy.” 14 M.R.S.A. §6002(1)(A) and (B).  Remember that these things must be shown by affirmative proof.  The Landlord must be able to prove it at trial.
      3. The 30-Day No Cause Eviction.  The third and simplest reason for termination of a tenancy at will is via a 30-day notice of termination.  This is commonly called a “no cause” eviction.  This can be given by either party in a tenancy at will.  Landlords should be cautious about accepting rent during this time as there is an ambiguity in the statute.  If the Tenant has paid rent through the date when a 30-day notice would expire, the notice must expire on or after the date through which the rent has been paid.
      4. Service.  Many problems with evictions occur because of insufficient service of the notice of termination.  All termination notices under §6002 must be in writing and given to the Tenant in hand at the apartment.  The notice of termination of tenancy can be served by the Landlord or their agent.  If the Landlord (or agent) is unable to serve the Tenant in hand after three good faith attempts (what constitutes good faith is always up for debate), he/she may post the notice at the apartment AND mail it first class mail to the Tenant’s last known address.  If the notice is posted but not mailed, service is not effective.  It should be mailed as soon as possible after the posting.  The Landlord should keep some record of mailing, either via a proof of mailing or, at the least, a certificate of service.  The Landlord should also calculate the 7 or 30 days from the later of either the posting or mailing.
    2. Lease Termination and Surrender
      1. Termination: Read the Lease.  A common mistake is where a Landlord uses the same notice of termination of tenancy for several different leases.  The notice must conform to the lease.  Many leases have sections that include required language that must be in the notice. Again, it may sound obvious, but READ THE LEASE.  It is staggering how many Landlords send notices that have no relationship to the required language of the lease. The notice(s) should cite to the specific sections of the lease that are alleged to be violated.  Remember, one notice does not necessarily fit all.  Many leases, especially HUD and other public assistance leases, have requirements that a Landlord give the Tenant notice and an opportunity to correct the violation.  If the notice is not served in compliance with the lease, it is ineffective and unenforceable so use caution in drafting.
      2. Surrender.  A lease is a contract for a certain amount of time between Landlord and Tenant. If the Tenant wishes to get out of the lease, and the lease does not have an early termination clause, then the Tenant could be responsible to the Landlord for the unpaid rent for a period up to the remaining term of the lease.
        If the Tenant surrenders or abandons the property while under a lease, the Landlord is under a statutory obligation to minimize damages.  This requirement is contained in 14 M.R.S.A § 6010-A.  The Landlord must make a good faith effort to re-rent the apartment.  This can be satisfied by proof that they have advertised or shown the apartment to prospective Tenants.  If this is done, the Landlord can get unpaid rent from the time the Tenant vacated until the apartment is rented or until the lease expires, whichever comes first. If the Landlord cannot rent the apartment for the same amount as the vacating Tenant paid, they can make a claim for the difference.
    3. Enforcement of Default Clauses.  The only legal process to remove a Tenant is the forcible entry and detainer process.  The Landlord must be careful not to “self-help” and take matters in their own hands.  The Court is very tough on Landlords who try to remove a Tenant without proper process. 14 M.R.S.A. §6014 gives several examples of behavior that will be considered illegal evictions: interruption or termination of utilities, seizing, holding, or otherwise prohibiting the Tenants from accessing the premises without proper process (i.e. changing the locks), and holding and denying access to Tenant’s property.
      Section 6014(2) provides that, if the Landlord commits an illegal eviction, the Tenant is entitled to recover his actual damages or $250, whichever is greater.  The Tenant may also be entitled to recover his legal costs, including attorney fees. 
  3. The Court Process:  Forcible Entry and Detainer: The Summary Proceeding.  Regardless of whether a tenancy is a Tenancy-at-Will or leasehold, all eviction actions must be brought by the filing of a forcible entry and detainer complaint (FED) in the District Court in the division where the property is located.  The complaint must contain the allegations forming the grounds for the eviction and allege who is the owner of the property.  Furthermore, the complaint must include a summons obtained from the Court and must be served by either a sheriff or a licensed process server.  It cannot be served by the Landlord.  The complaint must be served at least seven calendar days before the hearing date.
    1. Is an Attorney Necessary?  While a notice of termination may be filled out and signed by anyone, if the Landlord is an LLC or a corporation, the FED complaint and summons must be signed and filed by a licensed attorney.  For FEDs, there is no exception to the rule against the unauthorized practice of law as there is in small claims cases.  If the Landlord is a sole-proprietorship, the Landlord can bring the action without an attorney; however, the Landlord is held to the same standard as an attorney and must obey the Maine Rules of Civil Procedure and Evidence.
    2. Alternate Service.  If the complaint cannot be served within a reasonable time (a minimum of three good faith service attempts), the Landlord may request permission from the Court to attempt alternative service.  This may be done by filing a motion in the District Court along with an affidavit signed by the process server detailing efforts to serve the complaint.  If the Court agrees that the Tenant cannot be served traditionally, it will enter an Order allowing the summons to be posted at the apartment and mailed via first class mail.  It is good practice to include an affidavit or other proof of mailing to show you complied with the Order.
    3. Jurisdiction of Landlord/Tenant CourtThe Forcible Entry and Detainer Court only has the authority to determine who has the right to possess the premises. The Court cannot enter a judgment that awards the Landlord or Tenant damages.  See Bureau v. Gendron, 783 A.2d 643 (Me. 2001)(A forcible entry and detainer action is a summary proceeding to determine the single issue: who is entitled to immediate possession of the property).  There is one exception and that is that the Court can, though rarely does, temporarily reduce the amount of rent the Tenant is required to pay for habitability violations until they are repaired.
    4. Judgment and Writ of Possession Assuming a hearing is necessary, the burden is on the Landlord to prove the allegations in the notice of termination of tenancy.  The Landlord (and/or counsel) should be prepared for trial with the proper exhibits (such as notice of termination, lease, photos, etc.) as well as witnesses.  Unlike small claims cases, the rules of evidence apply.  If the Landlord does not meet the burden, or if there are procedural errors along the way, the case will be dismissed or the Judge will rule against the Landlord.  As stated above, the only decision before the Court is possession of the property.  The Court cannot enter a judgment that awards the Landlord or Tenant damages.  Furthermore, the Court cannot, absent agreement of the parties, reduce or extend the seven days allowed for a Writ of Possession.
      If at the FED hearing the Landlord is awarded judgment, the Tenant is awarded seven days to vacate the premises.  During these seven days, the Tenant is still entitled to quiet enjoyment and full possession of the property.  Once the seven days have expired, the Landlord is entitled to obtain a writ of possession from the District Court.  The writ must be served by the local sheriff’s department, not a process server.  14 M.R.S.A. §6005.  The sheriff must attempt three good faith service attempts on three different days and then can post the writ.  Once the writ is posted or served, the Tenant has an additional 48 hours to vacate or will be considered a trespasser without right and the Tenant’s property considered abandoned.
      If the Tenant is a Tenant-at-Will, and the grounds for termination of tenancy is non-payment of rent, the Tenant can stop the issuance of the writ by paying the total rent owed to date, plus service and filing fees actually paid by the Landlord so long as it is paid before the writ issues.  Please note that the court costs do not include attorney fees.
    5. When Not to Proceed in Landlord/Tenant Court.  As stated previously, any attempt to remove the Tenant must be done through a Forcible Entry and Detainer Action. However, if the Landlord wishes to pursue the Tenant for unpaid rent or damages to the apartment, the Landlord can do so in Small Claims Court or District Court depending on the amount of the damages.
  4. Answer, Defense, Appeals and Jury Trials.
    1. Answer or Motion to Dismiss.  Like any other litigation, the Tenant has the right to file a formal written answer challenging the FED.  However, unlike other litigation actions, a formal written answer is not required.  The only exception to this is that, if the Tenant intends to claim title in the Tenant’s name or under someone else’s name under whom Tenant can claim a right to possess the premises, the Tenant is required to file a formal written answer on or before the return (hearing) day.
      If the Tenant feels the action was brought improperly or illegally or if there is a procedural defect, the Tenant can file a Motion to Dismiss to ask that the case be dismissed.  In most situations the Court will take up the Motion as part of the hearing on the FED.
    2. Defenses (Acceptance of Rent, Warranty of Habitability, and Retaliatory eviction, Reasonable Accommodation).  If a Tenant has a defense to the action, it must be asserted at trial.  A Tenant could have several different defenses, but the most common are that the Landlord accepted rent thereby negating the Notice, that the apartment violates the Warranty of Habitability and/or the action is retaliatory and that the Landlord has failed to provide a Reasonable Accommodation to the Tenant.
      1. Acceptance of Rent.  Acceptance of Rent by the Landlord while a Notice is pending is not necessarily fatal.  However, there are certain exceptions to that rule. Obviously if the Landlord is evicting the Tenant for non-payment and the Tenant pays the Landlord in full, the Landlord cannot proceed.  A more common issue however arises where the Landlord accepts partial rent or if the eviction is a “no cause” and the Tenant pays the rent beyond the termination date of the notice.  A careful Landlord will include in his or her notice a statement to the effect that acceptance of partial rent does not negate the Notice.  The Landlord should also take care to insure that all of his or her records are complete and clear.  If the Landlord cannot figure out what the Tenant owes, the Court will not either.  Furthermore, the Landlord should be clear in his or her records what is unpaid rent, what is unpaid late fees, and what are other miscellaneous costs such as work order amounts, unpaid damages, etc.  Unless a lease specifically allows for termination for unpaid miscellaneous costs, the Landlord can only evict for nonpayment of rent.
        With respect to 30 day “no-cause” evictions, if the Tenant has paid beyond the termination date in the Notice, the Notice does not expire until that date. For example, if the 30 day Notice expires August 15 and the Tenant paid, and the Landlord accepted, full rent for August, the Landlord cannot serve the FED or require the Tenant to leave until at least September 1st.  If the Tenant wants to pay, the Landlord should pro-rate to the termination date.
      2. Warranty of Habitability/Retaliatory Eviction.  Two of the most powerful and commonly used defenses is a claim that Landlord has breached the Warranty of Habitability contained in 14 M.R.S.A. §6021 and/or that the eviction is retaliatory for the Tenant’s asserting his rights under the Warranty.  Under Maine’s forcible entry and detainer (eviction) laws, there is a rebuttable presumption, in certain circumstances, that a Landlord evicted a Tenant in retaliation if that Tenant exercised certain rights or complained about habitability issues or code violations in the six months prior to the eviction action.  Generally speaking, if the Landlord evicts a Tenant within 6 months of the Tenant asserting rights under Section 6021, it is presumed that the eviction is retaliatory.  In order to raise the presumption, the Tenant must first prove that the Landlord was aware of the issues and the Tenant actually asserted his/her rights.  The most common way this is done is the Tenant calling the municipal code enforcement officer to make complaints.  Once the presumption is raised, the Landlord can overcome the presumption by showing there is a legitimate reason for the eviction.  A more recent legislative change makes the presumption unavailable to the Tenant where the eviction is for nonpayment of rent or for severe damage to the property caused by the Tenant.  The new law provides added protections for Landlords evicting Tenants within the six months following a Tenant’s complaints.  For example, the amended law provides that presumptions of retaliation do not apply if the eviction “is brought for failure to pay rent or for causing substantial damage to the premises … unless the Tenant has asserted a right pursuant to §6026 [regarding dangerous conditions requiring minor repairs]”.  14 M.R.S.A. §6001(3).  In addition, this section makes it clear that the presumption will only apply to housing complaints made in good faith “for which there is a reasonable basis” and only to complaints filed “prior to [the Tenant’s] being served with an eviction notice.”  14 M.R.S.A. §6001(3)(E).   There is a similar amendment to the retaliation presumption when a Tenant exercises his rights under Maine’s new bedbug law (discussed below).
      3. Reasonable Accommodation.  Another commonly used defense is that the Tenant was denied a Reasonable Accommodation under the Maine and Federal Fair Housing Acts.  The Landlord has a responsibility to reasonably accommodate a Tenant with a disability.  The section provides that a court “shall deny forcible entry and detainer and not grant possession to the Landlord if the court determines that the Landlord has a duty to offer a reasonable accommodation and has failed to do so and there is a causal link between the accommodation requested and the conduct that is the subject of the forcible entry and detainer.”  14 M.R.S.A. §6001(5).  In other words, the Tenant must not only prove that he was denied a reasonable accommodation, but also that the denial is the cause of the eviction proceeding.
        The law defines a “reasonable accommodation” as “a change, exception, or adjustment to a rule, policy, or practice or service that is necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common access spaces for that dwelling.” 14 M.R.S.A. §6001(5).  Although this affirmative defense is relatively new, a Landlord’s duty to provide a reasonable accommodation for disabilities is not; a judge at an eviction proceeding may look to what accommodations have been considered reasonable in other settings.  If the judge does find that a reasonable accommodation was denied, he/she moves to the next inquiry - whether the denial caused the eviction.  An example of such a situation might be if a disabled Tenant was denied a companion animal and was being evicted for violating a Landlord’s prohibition against pets. 
      4. Appeals.  If there is a hearing and the Landlord is successful, the Tenant does have a right to appeal the judgment.  Any appeal must be taken within 30 days of the date of judgment or before the Writ of Possession issues, whichever comes first. An appeal of an FED judgment is not as simple as filing a Notice of Appeal. Appeals of FED Judgments are made to the Superior Court. If the Tenant is alleging the Court made an error of law, the Tenant must provide the Court with a list of what errors he or she feels the Court made. If the Tenant alleges an error of fact, then the Tenant is entitled to request a Jury Trial. However, the Tenant must provide the Court with an affidavit stating what genuine issues of material fact are in dispute. The Landlord is then given an opportunity to provide a counter affidavit showing there are no genuine issues. If the Court determines there are genuine issues of material fact in dispute, it will refer the case to Jury Trial. If it finds there are no genuine issues, it will deny the appeal.
      5. Stay of Writ of Possession.  When an appeal has been filed, the Writ of Possession is stayed and the Tenant is allowed to remain in the premises pending appeal. However, a little known and less utilized provision of the appellate statute for FEDs is that the Court can require the Tenant to pay rent to the Landlord or, if rent is in dispute to the Court, to hold in escrow as a condition of the stay of the Writ of Possession. Typically the Landlord would have to request this from the Court.  However, a recent legislative update requires Tenants, as a condition of filing an appeal, to provide the Court with an affidavit that they have complied with the rental requirement of the statute.  Presumably, if they fail to do so, the appeal can be dismissed.  This is great news for Landlords who have long complained Tenants filed frivolous appeals simply to delay the issuance of the Writ of Possession.
      6. Jury Trial de Novo.  The Tenant only has a right to a Jury Trial at the appellate level after a contested hearing in the FED court. The right only applies to cases where the Tenant has successfully alleged via affidavit that there is a genuine issue of material fact still in dispute. If the Court agrees there is one, then the case will begin anew. Normal procedural rules of discovery, motion practice, etc. will apply.
  5. Maine’s Bedbug Law.  The “bedbug” laws went into effect on July 11, 2010.  14 M.R.S.A. §6021-A.  The bedbug law is comprehensive and imposes ongoing communication and cooperation between Landlords and Tenants in addressing Maine’s bedbug problem.  It sets forth responsive action upon both parties in the event of an infestation. 
    1. Duties of Landlord.  The law requires the Landlord to physically inspect the premises within 5 days of being notified of a possible bedbug infestation.  If bedbugs are confirmed, the Landlord then has 10 days to contact a pest control agent who carries a liability insurance policy.  The Landlord must then “take reasonable measures to effectively identify and treat the bedbug infestation.”  14 M.R.S.A. §6021-A(2)(D).  The law also requires Landlords to disclose bedbug infestation and treatment to potential Tenants of adjacent units and prohibits a Landlord from renting units that he/she knows or should know has bedbugs or is being treated for bedbugs.  If a current or potential Tenant inquires, a Landlord must disclose the last date when the unit was “inspected for a bedbug infestation and found to be free of a bedbug infestation.”  14 M.R.S.A. §6021-A(2)(D).
      The law also mandates that “a Landlord shall offer to make reasonable assistance available to a Tenant who is not able to comply with requested bedbug inspection or control measures,” including providing “financial assistance to the Tenant to prepare the unit for bedbug treatment.”  14 M.R.S.A. §6021-A(2)(F).  The Landlord shall disclose to the Tenant the potential cost for the Tenant’s compliance with the requested bedbug inspection or control measure.  The law does not define the scope of assistance required, or the extent to which financial assistance must be offered, although the amendments discussed below provide some clarification.  In addition, the law provides that the Landlord “may charge the Tenant a reasonable amount for any such assistance,” subject to a “reasonable repayment schedule.”  14 M.R.S.A. §6021-A(2)(F).
      If a Landlord fails to comply with the requirements of this law, there is a presumption of a violation of the warranty of habitability.  Further, the Landlord may be “liable for a penalty of $250.00, or actual damages, whichever is greater, plus reasonable attorney’s fees.”  14 M.R.S.A. §6021-A(4)(D).
    2. Duties of Tenants.  The law requires a Tenant to notify the Landlord if bedbugs are suspected, and mandates the cooperation of Tenants in addressing the bedbug problem.  If the Landlord gives reasonable notice to the Tenant about his need to inspect for bedbugs, the Tenant must allow access to the Landlord or his agents for this purpose.  “Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.”  14 M.R.S.A. §6025.  A Tenant’s obligation to provide access for inspection may extend to the Tenant’s personal belongings, if the pest control agent reasonably believes such inspection is necessary. 
      If a Tenant fails to comply and cooperate with the Landlord or his agents, a Landlord may seek a protective order, under which the court could:
      1. "Grant[ ] the Landlord access to the premises for the purposes set forth in this section;
      2. Grant[ ] the Landlord the right to engage in bedbug control measures; and
      3. Requir[e] the Tenant to comply with specified bedbug control measures or assess[ ] the Tenant with costs and damages related to the Tenant’s noncompliance.”
      Following 24 hours after service upon the Tenant of the court order, the Landlord may enter the premise and take remedial action.
      In short, Tenants must comply with any “reasonable measures to eliminate and control a bedbug infestation as set forth by the Landlord and the pest control agent.”  14 M.R.S.A §6021-A(3)(C).  If the Tenant unreasonably fails to be cooperative with respect to pest control treatment, the law gives the Landlord the right to step in, get the work done, and then hold the uncooperative Tenant financially responsible for the cost “arising from the Tenant’s failure to comply.”  14 M.R.S.A. §6021-A(3)(C).  
      The new law does not require any specific type of treatment.  It simply states that it be effective to eliminate and control bedbugs.  It does not address what happens if the Tenant disagrees with the type of treatment the Landlord uses (e.g., chemical, non-chemical, organic, or pet safe, etc.), or whether a Tenant’s disagreement about treatment methods could constitute an unreasonable failure to comply. 
    3. 2011 Amendments to the July 2010 Bedbug Law.  Perhaps the most undefined aspect of the 2010 bedbug law is its requirement that Landlords must offer to make reasonable assistance, including financial assistance, to Tenants who are unable to comply with their responsibilities under this law.  Although the 2010 law did not define the extent to which Landlords must offer assistance, the 2011 amendments make it clear that providing financial assistance to the Tenant for purposes of vacating to allow for bedbug treatment does not require the Landlord to provide lodging or to “pay to replace a Tenant’s personal belongings.’’  This section is still vague, however, in that it merely identifies certain things that would not be required without saying what assistance would be required.
  6. Energy Efficiency Disclosure.  The law regarding a Landlord’s duty to disclose the cost of energy has been amended to allow prospective Tenants who will be paying the utility costs of a unit to obtain directly from the energy supplier “the amount of consumption [for the unit] and the cost of that consumption for the prior 12-month period.”  14 M.R.S.A. §6030-C(1).  Also, instead of providing prospective Tenants with a residential energy efficiency disclosure statement, the Landlord may now require the prospective Tenant to obtain the information from the energy supplier as long as the Landlord includes in the residential rental application the name of each previous energy supplier, if known, and a notice stating:  “You have the right to obtain a 12-month history of energy consumption and the cost of that consumption from the energy supplier.”  14 M.R.S.A. §6030-C(1). 

This article is not legal advice but should be considered as general guidance in the area of landlord-tenant law.  Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.