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Lease Not Terminated When Eviction Action Stopped

A commercial lease was not terminated when the landlord suspended its 2009 action for possession of space leased and assigned by a tenant, but in any event, the tenant owed rent for the four-month period following the assignee’s post-default eviction before the premises were relet; a Fairfax Circuit Court enters judgment for the landlord.

The sole issue to be considered is what effect, if any, did the legal proceedings initiated by the landlord in 2009 have on the lease and the tenant’s liability for the subsequent default of the assignee in 2010?
Paragraph 3 of the third amendment to the lease held the tenant liable for the obligations of the assignee upon default . As to the effect of the legal proceedings initiated by the landlord in 2009 on the lease and the tenant’s liability, the court finds paragraph 21(B) of the lease controlling. In the event the lease was terminated in 2009 by the actions of the landlord, the landlord still had the right to collect the difference between the rent due under the lease for each month during the balance of the term and the rent collected for each such month upon reletting. Likewise, all costs and late fees are also recoverable by the landlord.

Therefore, whether the landlord’s actions did in fact terminate the lease in 2009, as posited by the tenant, is inconsequential. In clear and unambiguous language, the parties agreed that the obligations of the tenant to the landlord shall not end upon termination of the lease.

During the four months of September through December 2010 following the assignee’s eviction, the premises were not relet and the full rent is due from tenant to landlord for these months according to the plain and ordinary meaning of Paragraph 21(B).

However, in light of the fact that the tenant argues that the lease was terminated in 2009 the court will nevertheless rule upon that issue.

No evidence was presented at trial that any formal or written or clear notice was given to the tenant that the lease was terminated, so that part of Paragraph 21(A)(i) is inapplicable. Although the landlord initiated the judicial process in 2009 resulting in the issuance of a writ of possession and a scheduled eviction, the landlord chose to cancel eviction upon receiving the rent due from assignee and/or guarantors. The eviction proceedings under the writ of possession were not fully executed and therefore the evidence is insufficient to prove that the “judicial process” in 2009 terminated the lease under Paragraph 21(A)(i).

The lease also provides for the potential collection of attorney’s fees. The evidence regarding fees was insufficient for the court to ascertain amount and reasonableness of fees, and no fees are awarded to either party.

Dwoskin v. Avino (Schell) No. CL 2010-14495, April 19, 2011; Fairfax Cir.Ct.; Susan F. Earman for plaintiff; Brian McCormack for defendant. VLW 011-8-096, 6 pp.

VLW 011-8-096

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