Commonwealth Memorial, Inc. v. Telophase Society of America

California Court of Appeal Nov 16, 1976 No. Civ. 15937Published

Before: Kaufman

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Holding. A purchaser of property who expressly excludes the seller's rights as a landlord under an existing lease cannot maintain an action for unlawful detainer against the lessee, as the purchaser is not the landlord or successor in estate.

Issues

Whether a purchaser of property who reserves the seller's rights as landlord under an existing lease may maintain an action for unlawful detainer against the lessee.
Whether Civil Code section 821 allows a purchaser to become a landlord by operation of law despite an express agreement to the contrary.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the purchase and sale agreement between Memorial and plaintiff expressly reserves to Memorial the landlord’s rights under the lease to defendant, and plaintiff did not become defendant’s landlord by operation of law.”

“plaintiff may not maintain a statutory action for unlawful detainer against defendant”

“judgment was given for defendant not because plaintiff failed to join Memorial as a party defendant but because the court concluded that plaintiff was not a real party in interest in the action for unlawful detainer.”

Opinion

KAUFMAN, J.

Plaintiff in this unlawful detainer action appeals from an order granting defendant’s motion for “nonsuit.”

Facts

Memorial Properties, Inc., a corporation, owned property in Anaheim operated as a cemetery and known as The Melrose Abbey. On or about February 15, 1974, upon specified rent payable over the term, Memorial leased a part of the cemetery property to The Telophase Society of America, Inc., a California corporation, (hereinafter “defendant”) for a term of 30 years to be used as a crematory.

Thereafter Memorial sold the cemetery property, including that portion leased to defendant, to Commonwealth Memorial, Inc., a California corporation, (hereinafter “plaintiff’). Memorial reserved to itself, however, the lessor’s rights under the lease between Memorial and defendant. The agreement between Memorial and plaintiff provided for the sale to plaintiff of “All properties, tangible or intangible, real, personal, or mixed, leaseholds, licenses, easements, profits, permits, franchises, rights-of-way, servitudes, reversions, remainders, and all other similar or dissimilar interests or estates;

except that certain Lease

dated February 15, 1974 showing Telophase Society of America as Lessee and any right, title or interest of Memorial in that certain Lease dated Februaiy 15, 1974 between Memorial and the Telophase Society of America. Commonwealth shall continue to recognize said Leases and

[870]

shall take all real property conveyed hereunder subject to said Leases;...” (Italics added.)

On February 25, 1975, plaintiff instituted this action for unlawful detainer alleging that defendant was using the crematory unlawfully in that it failed to obtain a certificate of authority as required by the Business and Professions Code. (See Bus. & Prof. Code, §§ 9768, 9715.)

After plaintiff rested its case, the trial court granted defendant’s motion for “nonsuit” (see fn. 1,

Commonwealth Memorial, Inc. v. Telophase Society of America

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KAUFMAN, J.

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