Groh v. Kover's Bull Pen, Inc.

California Court of Appeal Oct 29, 1963 No. Civ. 27209Published

Before: Burke

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Holding. The court held that a landlord's failure to repair a leaking roof, which rendered the premises unfit for their intended use, constituted a constructive eviction justifying the tenant's termination of the lease. The court further held that the security deposit was not prepaid rent and that the tenant did not waive their rights by relying on the landlord's repeated promises to repair.

Issues

Whether the evidence was sufficient to support a finding of constructive eviction based on the landlord's failure to repair a leaking roof.
Whether the covenant to repair the roof was independent of the covenant to pay rent.
Whether the tenant waived the right to claim constructive eviction through estoppel or laches.
Whether the security deposit constituted prepaid rent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A lessee is not obligated to continue to occupy untenantable premises.”

“The obligation to repair cannot be shifted to the tenant where the tenant and lessor have expressly bargained to the contrary as a material part of the consideration for the lease.”

BURKE, P. J.

Plaintiffs, as lessee, sued defendants, as lessor, under a written lease, for the recovery of the security deposit in the sum of $28,800 paid defendants at the inception of the lease, and for damages, for breach of the covenant to maintain the premises in useful condition. More particularly, the alleged failure was to repair the roof of the premises which leaked during the rainy season each year.

Defendants cross-complained against plaintiffs, alleging certain failures of plaintiffs to operate the business properly and to maintain their heating and cooling equipment on the roof of the premises causing the damages and leaks of which plaintiffs complained. Defendants asserted that plaintiffs were barred from any recovery by estoppel and laches in accepting the conditions for a period of four years allegedly without complaint or demand to make repairs.

After trial, judgment was entered for plaintiffs based upon constructive eviction for failure of defendants to repair the roof of the premises.

Essentially, defendants’ appeal is based upon alleged insufficiency of evidence to justify the finding that plaintiffs were constructively evicted.

The leased premises were comprised of a cocktail lounge and restaurant which was operated 24 hours a day. The lease was for a term of 10 years in the total rental amount of $240,000, payable $2,000 per month. As stated, an initial deposit of $28,800 was made to be held by defendants as security for the performance of the terms of the lease by lessee and to be ultimately applied in payment of the last months’ rental to the extent of the amount then on deposit. By the terms of the lease defendants specifically undertook to repair the exterior walls and roof of the premises.

Plaintiffs commenced their occupancy of the premises in December 1955 and for four years and two months operated their business therein. During the first rainy season constant and continuous leaks occurred which grew progressively worse and became more numerous during subsequent rainy seasons throughout the entire period of plaintiffs’ occupancy. The rain water dripped upon and ran down the beams, walls and partitions and formed puddles of water upon the floor. Containers were used to catch the leaking water; the water caused hazardous and dangerous conditions to employees and patrons alike from possible slipping or falling and caused the

[614]

Groh v. Kover's Bull Pen, Inc.

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BURKE, P. J.

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