327 Bourbon St., Inc. v. Pepe, Inc.

• Decision Date: 18 January 1971
• Docket Number: No. 50436,50436
• Citation: 243 So.2d 262,257 La. 577
• Parties: 327 BOURBON STREET, INC. v. PEPE, INCORPORATED.
• Court: Louisiana Supreme Court

Page 262

243 So.2d 262

257 La. 577

327 BOURBON STREET, INC. v. PEPE, INCORPORATED.

No. 50436.

Supreme Court of Louisiana.

Jan. 18, 1971.

Rehearing Denied Feb. 10, 1971.

Steeg & Shushan, Rader Jackson, New Orleans, for defendant-appellee-respondent.

James J. Morrison, Jr., New Orleans, for plaintiff-appellant-applicant.

TATE, Justice.

The plaintiff's eviction proceedings were dismissed upon an exception of no cause of action. La.App., 230 So.2d 408. We granted certiorari. 255 La. 907, 233 So.2d 560.

The principal issue is whether, after (due to breach of lease condition) a landlord has accelerated the payment of the rentals for the entire unexpired term of the lease, he may nevertheless evict the tenant from possession of the premises before expiration of the term.

The allegations of the petition and attached exhibits show:

The landlord ('Bourbon') leased to the tenant ('Pepe') certain premises for a term of five years. The monthly rental is $750 per month. The lease contains a provision that, upon breach of any lease condition (including nonpayment of the rent), the landlord may, after five days' notice and the tenant's failure to rectify the breach(es), demand the rent for the entire unexpired term of the lease. ¹

Some eighteen months into the term of the lease, the landlord Bourbon notified the tenant Pepe of certain breaches of the lease, including failure to pay the monthly rent then due, failure to maintain insurance, and several other violations. Eight days later, Bourbon notified Pepe by letter that, pursuant to the lease option, it demanded payment of the accelerated lease rental for the remainder of the term, amounting to $33,000.

The present eviction proceedings were subsequently filed. See LSA-C.C.P. Art. 4701 et seq. By them, the landlord Bourbon prays for judgment ordering the tenant Pepe to vacate the premises. Essentially, the landlord contends it is entitled to possession of the premises because of the tenant's nonpayment of the $33,000 rent due and for its failure to correct the other violations noted.

In contending that Bourbon has no right to evict its tenant, Pepe argues that, by exercising the lease option to accelerate the rents for the remainder of the term, Bourbon had elected to enforce the lease and not to cancel it, so therefore had no right to possession of the premises. The trial and intermediate courts upheld this contention.

These courts relied upon Henry Rose Mercantile & Mfg. Co. v. Stearns, 154 La. 946, 98 So. 429 (1923). The actual holding of Stearns is only that a landlord may not both evict a tenant and also demand rent for a lease period following the eviction.

This decision contains language to the effect that a landlord cannot both 'sue' for rent for the unexpired term and also disturb his tenant's right of occupancy. The cited opinion further states that, where the landlord has exercised his option to accelerate the rent, he elects to continue the lease contract in force and thereby accords his tenant the right to remain on the premises.

This latter dictum relied upon by the defendant tenant was intended only as a general statement of the principle that ordinarily a landlord may not both enforce his right to receive the accelerated rent and at the same time deny his tenant the right to occupancy for the term represented by the accelerated rent. Sigur v. Lloyd, 1 La.Ann. 421 (1846).

By these proceedings, however, the present landlord is not seeking to do more than to evict his tenant. He is not also attempting to enforce his option to receive accelerated rent.

Thus, the allegations show that the landlord, Bourbon, prays to evict the tenant Pepe for nonpayment of the rent and for other lease violations. Aside from lease provisions to such effect, these breaches entitle the landlord to cancel the lease and obtain possession of the premises. Civil Code Articles 2711, 2712, 2727.

These allegations state a cause of action for eviction. La.Code of Civil Procedure Article 4701 provides for eviction when a tenant's 'right of occupancy has ceased because of termination of the lease by * * * non-payment of rent, or for any other reasons * * *.' The previous courts were in error in holding otherwise.

If we assume, as the defendant wishes, that the landlord is irrevocably bound (although we doubt it) through his prior letter accelerating the $750 monthly rent, nevertheless the pleadings show that such landlord has demanded the $33,000 rent due and has not been paid. We are aware of no requirement of law...