Harabedian v. Parnell

McCOMB, J.

From a judgment in favor of plaintiffs after trial before the court without a jury in an unlawful detainer action, defendant appeals.

On May 14, 1948, plaintiffs, as lessors, leased to defendant the entire second floor of a building located at 34F/2 South Western Avenue which comprised 3 apartments and 12 guest rooms and was denominated an apartment hotel. At the time the lease was signed the premises were not ready for occupancy. Said lease provided for a total rental of $54,000 for a five-year period commencing May 10, 1948, and ending May 9,1953. It further provided, “Remodeling is now progressing on the twelve single rooms and as they are completed, one by one, possession will be given to Lessee.” The lease also stated that the rental of $900 per month was to be payable monthly in advance, and acknowledged that $600 of the first month’s rent was received upon execution of the lease. Further provisions read: " However, the beginning date when rental shall start to accrue, shall be the time when the painters have completed painting the 12th single room;” and “Twenty days thereafter the sum of $300.00 balance on the first months rent shall be due and payable and thirty days or one month after the painters have completed said 12th room, then the 2nd months rent under this lease shall be due and payable. ’ ’

The completion date was August 23, 1948. On October 1, 1948, plaintiffs served defendant with a written notice to pay rent or quit, since defendant failed to pay, on September 23, 1948, the sum of $1,200 plaintiffs claim was due as rental for the premises. Defendant having failed to perform either alternative, the present suit was instituted.

Questions:

First:

Was the notice to pay rent or quit insufficient in that it demanded a sum in excess of the amount due under the lease f

This question must be answered in the negative. It is the general rule in the absence of a statute or agreement to the contrary that rent is not apportionable but is due and payable upon the date fixed for payment.

(Fahrenbaker

v.

E. Clemens Horst Co.,

209 Cal. 7, 9 [284 P. 905].) The present case does not fall within either of the exceptions stated in the general rule and therefore the rent was not apportionable.

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