Collins v. Shanahan, 73--127

• Docket Nº: No. 73--127
• Citation: 34 Colo.App. 82, 523 P.2d 999
• Case Date: May 07, 1974
• Court: Court of Appeals of Colorado

Page 999

523 P.2d 999 34 Colo.App. 82 Margarethe COLLINS, Plaintiff-Appellee,
v.
William M. SHANAHAN, and Ellen C. Shanahan, Defendants-Appellants. No. 73--127. Colorado Court of Appeals, Div. I. May 7, 1974.
Rehearing Denied May 29, 1974.
Certiorari Granted July 15, 1974.

[34 Colo.App. 84]

Page 1001

Hindry & Meyer, Gail F. Linn, Denver, for plaintiff-appellee.

Clark, Martin & Pringle, Bruce Pringle, Denver, for defendants-appellants.

SMITH, Judge.

This action was originally commenced as one in unlawful detainer by plaintiff-appellee to recover possession of a penthouse apartment leased by plaintiff to defendants-appellants. Following trial to the court, judgment was entered in favor of plaintiff for possession of the apartment, rentals due in the amount of $1,833, and attorney's fees in the sum of $750. We affirm in part and reverse in part.

Defendants, the original owners of the apartment building containing the penthouse in dispute, sold the apartment building to plaintiff in August of 1968, and at that time entered into a lease agreement for the penthouse where they resided. On October 15, 1971, plaintiff, claiming that the tenancy was month to month, gave notice to defendants that the lease would be terminated as of November 1, 1971.

Under the rental agreement, plaintiff was to paint the premises in question every three years. In November of 1971, defendants demanded that plaintiff paint the penthouse. [34 Colo.App. 85] Upon plaintiff's refusal to paint, defendants took bids, had the penthouse repainted at a cost of $1,808, and withheld the rent for January, February, March, and part of April to cover the cost of painting.

On February 4, 1972, plaintiff commenced this action, seeking possession of the penthouse on the grounds that plaintiff had terminated the month to month tenancy which had been created by the lease agreement. At trial, defendants testified that they had agreed to sell the building only on condition that they be permitted to lease the penthouse in which they resided for as long as they desired. Neither the contract for sale nor the lease made reference to this condition of the sale, and plaintiff testified that no such condition had been agreed upon.

Plaintiff brought this action as an unlawful detainer action and received the benefits of summary proceedings under 1965 Perm.Supp., C.R.S.1963, 58--1--11 pursuant to his notice to quit. This was on the theory that the tenancy was one 'at will.' However at trial, plaintiff's counsel, in asserting an alternate right to termination based upon nonpayment of rent, stated: 'This matter comes before (the court), not on a typical F.E.D. matter, but rather a normal complaint and answer.' Plaintiff had at no time served upon defendants a demand for payment or possession pursuant to C.R.S.1963, 58--1--4(4).

The case was tried, without objection by defendants, upon two separate theories: First, as a statutory F.E.D. action on the premise that the tenancy was one at will; and secondly, as a general civil action for breach of a lease covenant to pay rent, a right granted in the contract. The trial court found that the lease was a month to month tenancy and that plaintiff therefore had the right to terminate upon proper notice. The trial court also found that defendants' withholding of rent breached the covenant to pay rent, thereby permitting termination by plaintiff. Defendant did not ask for reimbursement of any costs of painting or repairs in the event termination was held proper. Because the remedies differ, particularly as to the award of attorney's fees, we [34 Colo.App. 86] must review the rulings of the court on each theory.

TERM OF POSSESSION

The lease provisions were contained in a printed form of lease agreement. The clause defining the term of possession and rent payable was modified by the parties and provided as follows:

'To have and to hold . . . unto the said tenant from twelve o'clock noon of the 1st day of August, A.D., 1968, until (twelve o'clock noon of the _ _ day of _ _, A.D. 19_ _), at and for a

Page 1002

rental, (for the full term of aforesaid, of _ _ dollars), ¹ payable IN ADVANCE in monthly installments of Five Hundred and No/100 dollars per month UNTIL LEASE IS TERMINATED BY TENANT. SAID NOTICE OF CANCELLATION SHALL BE GIVEN BY TENANT TO LANDLORD IN WRITING AT LEAST SIXTY (60) DAYS PRIOR TO SAID TERMINATION DATE.' ²

Defendants urge that the lease creates in them a life estate, and that plaintiff had no power to terminate the lease absent a breach of covenant by defendants. We agree.

The construction of unambiguous written instruments is an issue of law, and this court is therefore not bound by the lower court's conclusions. See Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. A lease, like any other contract, is to be construed according to the general rules of construction of written instruments. See Buckhorn Plaster Co. v. Consolidated Plaster Co., 47 Colo. 516, 108 P. 27. We are here guided by the rule of construction which states that the intention of the parties, as reflected in the language of the agreement, is controlling. See Charles Ilfeld Co. v. Taylor, 156 Colo. 204, 397 P.2d 748.

It is clear from a reading of the lease agreement that it was the parties' intention that the lease continue in effect as long as defendants desired. The lease expressly provides that the term of the lease shall continue until terminated by the [34 Colo.App. 87] tenant. The conclusion that the parties intended the...