Thriftimart, Inc. v. Me & Tex

Opinion

KINGSLEY, Acting P. J.

Defendants

1

appeal from an adverse judgment in this action for unlawful detainer. We affirm the judgment.

[753]

In February of 1964, plaintiff’s predecessor

2

leased to defendants Me & Tex a parcel of land in a shopping center. Defendant erected a restaurant on that property. Thereafter the property was sublet to defendant Bahooka, Inc., which, after making some modifications, continued to operate a restaurant on the leased premises. In 1968, Bahooka removed part of the paving from a parking lot and planted that with flowers. Plaintiff had knowledge of that work and made no complaint of it.

3

In 1970, with the consent of plaintiff, Bahooka covered a patio area. Later that year Bahooka conceived a plan to enlarge the restaurant by constructing a banquet room. He sought permission from plaintiff for that addition but received no reply to several attempts to discuss the matter. Finally, in 1973, construction of the addition began and the record indicates that plaintiff was aware of the work but made no complaint until after construction had begun. The first formal notification to Bahooka from plaintiff came in 1974, in the form of a demand that the construction work be removed and Bahooka pay $19,259.09 for back rent. Thereafter negotiations continued between the parties, with offers and counteroffers until, no settlement having been reached, the instant action was commenced in March of 1978.

Although the record suggests some dispute as to the extent of the construction, it is admitted that it violated a clause in the lease requiring plaintiff’s consent for such construction and that it encroached in a substantial way beyond the area covered by the lease.

Relying primarily on

McGlynn

v.

Moore

(1864) 25 Cal. 384, and