RCH Corp. v. Southland Inv. Corp., 45676

• Decision Date: 13 November 1970
• Docket Number: No. 45676,No. 3,45676,3
• Citation: 122 Ga.App. 815,178 S.E.2d 766
• Parties: RCH CORPORATION v. SOUTHLAND INVESTMENT CORPORATION
• Court: Georgia Court of Appeals

Page 766

178 S.E.2d 766

122 Ga.App. 815

RCH CORPORATION v. SOUTHLAND INVESTMENT CORPORATION.

No. 45676.

Court of Appeals of Georgia, Division No. 3.

Nov. 13, 1970.

Sam G. Dettelbach, Atlanta, for appellant.

Orr & Joyner, John C. Joyner, W. Fred Orr, II, Decatur, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

This case is a dispossessory warrant proceeding filed in statutory form by the plaintiff (appellee) to oust the defendant (appellant). There had been a 6 year lease between the plaintiff as landlord and the defendant as tenant for the operation of a 'teen dance club' on the premises. This lease contained the following special stipulation: 'If the operations of the club create such a nuisance that an excessive number of complaints are received from the shopping center tenants and/or nearby residents and the cause of such complaints not be promptly corrected, the landlord can cancel this lease by giving sixty (60) days prior written notice by registered or certified mail. If such cancellation should occur, tenant will be permitted to occupy the premises and operate for the last month without payment of rent.'

The defendant moved for summary judgment on the grounds that: (1) the above stipulation is vague and unenforceable and is so uncertain that it can not be a basis for a dispossessory action; (2) the plaintiff is proceeding against him as a tenant at sufference and not as a tenant at will in which latter case he is entitled to notice which has not been given to him; (3) all rents have been paid and accepted by the landlord; and (4) no formal demand has been made for the possession of the premises as required by Code § 61-301. The lower court denied the motion for summary judgment, and the appeal is from that judgment with a certification by the judge authorizing an immediate appeal. Held:

1. 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 §§ 61-301, 61-302. Sinclair Refining Co. v. Davis, 47 Ga.App. 601, 171 S.E. 150; Sinclair Refining Co. v. Giddeons, 54 Ga.App. 69(1), 187 S.E. 201.

2. A demand for possession is not necessary where it would be futile to make it and same would be refused. Moore v. Collins, 36 Ga.App. 701, 702, 138 S.E. 81; Darling Stores Corp. v. William Beatus, Inc., 68 Ga.App. 869, 872, 24 S.E.2d 805; Craig v. Day, 92 Ga.App. 339, 340, 88 S.E.2d 451. Thus, such notice to vacate would be moot where...