Provouskivitz v. Snow

California Court of Appeal Oct 31, 1977 No. Civ. No. 50958Published

Before: Stephens

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Holding. The court held that a landlord-tenant relationship can coexist with a contract of sale, and that an unlawful detainer action is a proper remedy to regain possession when possession is held pursuant to a lease agreement.

Issues

Whether an unlawful detainer action can be maintained when a contract of sale and a lease agreement exist concurrently between the same parties.
Whether the amended complaint sufficiently alleged a landlord-tenant relationship to state a cause of action for unlawful detainer.

Disposition. reversed

Quotations verified verbatim against the opinion

“So long as possession is achieved through the landlord-tenant relationship, unlawful detainer may properly be utilized to regain possession.”

“To hold that in any case where there exists a contract to sell there cannot also exist a valid lease agreement is patently erroneous.”

“In light of the allegations, we cannot say, as a matter of law, that possession was not taken in accordance with a landlord-tenant relationship.”

[556]Opinion

STEPHENS, J. —This is an appeal from the judgment of dismissal entered following the sustaining of a general demurrer without leave to amend. Demurrer was filed to a first amended complaint. The sole ground was failure to set forth a cause of action for unlawful detainer.

Facts

The amended complaint alleges that Provouskivitz and Snow entered into an “Agreement For Sale of Real Estate” on November 13, 1975. The terms and conditions of sale are:

“1. Property sold under a contract of sale. (Standard Form)

“2. Price $190,000.00 net to seller plus or minus prorations. (Buyer to pay any expenses) Plus or minus improvements deducted from rent.

“3. Title by deed shall pass when seller has obtained clear title.

“4. When the title has been cleared buyer will obtain a loan for the balance then due and owing.

“5. Buyer will pay to seller $ 15,000 upon execution of the contract and $30,000 on 1-10-76.

“6. Property is sold ‘As is’.

“7. Seller and buyer will execute a contract on 11-5-75 and provide for interest and payment here under and under the lease portions to run from 12-1-75.

“8. Buyer understands that D. Gallagher is an Attorney who has an interest in the property.

“9. Buyer understands that the title to the property cannot be transferred because of pending litigation and that the completion of this contract is conditional upon the successful outcome of the litigation. Seller will use his best, efforts to successfully complete the litigation.

“10. If this contract cannot be successfully completed because of the pending litigation buyer shall receive $1000 off the rental payment for [557]moving expenses if he is forced to move by a successful litigant upon termination of the lawsuit and shall receive back all monies paid except money paid for rent.

Provouskivitz v. Snow

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