C & A Land Co. v. Rudolf Inv. Corp.
| Citation | 163 Ga.App. 832,296 S.E.2d 149 |
| Decision Date | 13 October 1982 |
| Docket Number | No. 64227,64227 |
| Parties | C & A LAND COMPANY v. RUDOLF INVESTMENT CORP. |
| Court | United States Court of Appeals (Georgia) |
Robert Strickland, Jr., Atlanta, for appellant.
William N. Withrow, Jr., Nancy D. Ewing, Atlanta, for appellee.
Rudolf Investment Corp. (Rudolf) entered into a contract with C & A Land Company (C & A) to lease certain commercial property. Rudolf was late in paying the rent, and under the terms of the lease, C & A notified Rudolf that it was terminating the lease and that Rudolf was a tenant at sufferance. Rudolf tendered the past due rent to C & A. The lessor allegedly refused the tender but kept the check in his possession. C & A demanded possession and subsequently filed the instant dispossessory action alleging that Rudolf was a tenant holding over and demanding payment of all rent due. Rudolf answered and tendered the past due rent plus costs into court within seven days of service. Rudolf moved for judgment on the pleadings on the basis of the complete defense provided for in Code Ann. § 61-309. The trial court granted Rudolf's motion and dismissed the proceedings. C & A appeals.
Appellant contends that the trial court erred in applying Code Ann. § 61-309. It is undisputed that the lessor sent a letter terminating the lease prior to demand and the institution of the dispossessory action. However, it is also clear that the reason for the letter of termination was nonpayment of rent by the lessee. Appellant argues that because Rudolf is a tenant holding over rather than a tenant dispossessed for nonpayment of rent, the tenant cannot avail himself of the defense of Code Ann. § 61-309. However, we need not reach this issue in order to decide the instant case.
The lease provides: The threshold questions are whether the lessor has effectively terminated the lease and whether the landlord may institute dispossessory proceedings against this tenant.
Where a lessee has breached a lease, the lessor is authorized to rescind the lease and summarily dispossess the lessee as a tenant holding over under Code Ann. §§ 61-301, 61-302. RCH Corp. v. Southland Invest. Corp., 122 Ga.App. 815, 816, 178 S.E.2d 766 (1970); Sinclair Refining Company v. Giddens, 54 Ga.App. 69, 70, 187 S.E. 201 (1936). When a tenant fails to discharge his obligations under the lease, the landlord has the right, created by the lease itself, to terminate the lease. Once the landlord terminates the lease and the tenant refuses to vacate, the tenant becomes a tenant holding over beyond the term of the lease. The landlord has the right, at that point, to institute dispossessory proceedings under Code Ann. § 61-301 by making demand for possession. Metro Management Co. v. Parker, 247 Ga. 625, 628, 278 S.E.2d 643 (1981). Forfeiture of a lease by acts of a party to a lease because of a breach of a covenant or condition are not favored, but where there is an express provision in the contract, termination or forfeiture of the lease will be permitted. Pritchett v. King, 56 Ga.App. 788, 790, 194 S.E. 44 (1937).
However, if the lessor wishes to declare a forfeiture of the lease for nonpayment it is incumbent upon the lessor to return immediately upon receipt thereof any and all payments of rental received by the lessor after the happening of the event giving the landlord the right to declare the forfeiture. Gay v. American Oil Company, 115 Ga.App. 18, 20, 153 S.E.2d 612 (1967). In the instant case C & A submitted an affidavit in opposition to Rudolf's motion which states that on August 5, 1981, C & A notified Rudolf that it was terminating the lease pursuant to the lease agreement. The lessor...
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