Mossi v. Fairbanks

California Court of Appeal Jun 28, 1912 No. Civ. No. 966.Published

Before: Burnett

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Holding. A demand for the payment of rent is a condition precedent to the enforcement of a lease forfeiture, and this requirement is not dispensed with by Section 793 of the Civil Code.

Issues

Is a demand for rent a condition precedent to the enforcement of a lease forfeiture?
Does Section 793 of the Civil Code dispense with the common-law requirement of a demand for rent before a landlord may initiate an action for forfeiture?

Disposition. affirmed

Quotations verified verbatim against the opinion

“To give a landlord a right of re-entry for nonpayment of rent, a demand of the rent, upon or after the last day upon which the lessee has to pay, is essential to complete the forfeiture and to enable him to maintain an action in ejectment.”

“Section 793 of the Civil Code does not dispense with the demand required by law, but merely reserves to the landlord his common-law action of ejectment in addition to his summary remedy under section 791 of the Civil Code.”

“the right of re-entry for nonpayment of rent does not accrue until a demand has been made for its payment regardless of the section of the code under which the action is brought.”

Synopsis

The facts are stated in the opinion of the court.

BURNETT, J.

The only question involved is whether a demand for the payment of rent is a condition precedent to the enforcement of the forfeiture of a lease. The premises were rented for the term of seven years and four months, commencing on the fourth day of July, 1910, for the monthly

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rental of $7.50, payable monthly in advance on the fourth day of each month during said term. It was provided in the lease “that if any rent shall be due and unpaid or if default shall be made in any of the covenants herein contained, then it shall be lawful for the party of the first part to reenter said premises and to remove all persons therefrom.” The action was brought to recover possession of the property in consequence of the failure of the lessee to pay the rent as agreed. In the complaint there was no allegation of demand for the rent, and for this omission the court sustained defendant’s general demurrer. Plaintiff declining to amend, judgment of dismissal was entered, from which the appeal was taken.

Undoubtedly the general rule is that a demand for the rent must be made before forfeiture will be decreed. In

Sauer

Meyer, 87

Cal. 34, [25 Pac. 153], it is said: “The appellant here claims that she has the right to recover because there has been a forfeiture of the lease for nonpayment of the rent. Forfeitures are not favored; and our Civil Code contains this provision: ‘A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. (Sec. 1442.) ’ To give a landlord a right of re-entry for nonpayment of rent, a demand of the rent, upon or after the last day upon which the lessee has to pay, is essential to complete the forfeiture and to enable him to maintain an action in ejectment. (Taylor on Landlord and Tenant, 8th ed., sec. 297; Wood on Landlord and Tenant, 2d ed., sec. 514.) ” This ease and other authorities are cited in

Cispusci

Clark,

12 Cal. App. 53, [106 Pac. 440], in support of the statement: “Regarding the $5 payment as rent, there could be no forfeiture under this agreement without demand by plaintiff of the rental upon or after the last day given the lessee on which to pay. ’ ’ The decisions in this state, as pointed out by respondent, seem to be uniform in holding that a demand for the rent is required.

Mossi v. Fairbanks

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Synopsis

BURNETT, J.

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