Monteleone v. Andrews

COBEY, J.

These are cross-appeals. Defendant Andrews appeals from a judgment against him in favor of the plaintiffs, the Monteleones, for $10,500 in unpaid rent and $1,957.44 in itemized damages. He also appeals from the order denying his statutory motion to vacate the judgment. Plaintiffs appeal only from that portion of this judgment which allows them but $50 as the value of certain control panels which were wrongfully removed from the leased premises.

Andrews Appeals

The only question presented by Andrews’ appeals is whether a lessee, over two years after his entry into possession of certain real property belonging to minors under a guardianship and leased to him for five years by the guardian of their estates, may disaffirm that lease

on the sole ground

that prior to the execution of the lease the guardian failed to obtain a court approval therefor. We believe not. Like counsel, however, we have been unable to find any precedent for this conclusion in California or elsewhere that we regard as controlling.

1

In the first place, it was not clear at the time of the making of this lease in 1961 that such prior court approval was required. Although court approval of the terms of a lease of guardianship real property had long been authorized by Pro

[300]

bate Code section 1538.5, the mandatory requirement of prior court approval of such leases contained in the immediately preceding section, section 1538, had been construed, prior to its amendment in 1967, as applying only to leases of mining claims and other real property worked as mines. (See 24 Cal. Jur.2d, Guardian and Ward, § 92, p. 281.) In 1967, however, the Legislature added to the Probate Code section 1538.6. This section expressly exempted from the mandatory prior court approval requirement of the just mentioned section 1538 month-to-month leases of guardianship real property and all leases of such property in which the rental did not exceed $250 a month and the term did not exceed one year. In view of the breadth of the coverage of this exception we must now assume that the mandatory prior court approval requirement of section 1538 has always been equally broad. (Cf. Annot., Guardian—Power to Lease, 6 A.L.E.Sd 570 (1966).