A REMINDER THAT A TENANT CAN HOLD LEASED PREMISES IN ACCORDANCE WITH THE TERMS OF AN EXPIRED LEASE.

There is an interesting lease discussion in a recent case alleged breach of a lease to operate a restaurant at the Charlotte Inn on Martha's Vineyard. See Edgartown Art Gallery, Inc. v. Il Tesoro, Inc., CIV.A. 12-11549-JLT, 2013 WL 628655 (D. Mass. Feb. 19, 2013). The defendant operated a restaurant under a one year written lease (with an option to renew for four more years) with the Edgartown Art Gallery (“EAG”). I somehow missed eating at “Il Tosoro at the Terrace” during the few years it was in existence.

After the first year the tenant did not renew but continued to operate the restaurant under the terms described in the lease, and in 2012 the landlord terminated the tenancy. The plaintiff/landlord brought an action that included claims of 1) breach of contract; 2) breach of the implied covenant of good faith and fair dealing; 3) breach of personal guaranty; 4) interference with advantageous business relationships; and 5) violation of Mass. Gen. Laws ch. 93A.

The defendant argued that “…the Statute of Frauds bars any subsequent oral agreement between the parties because the original lease involved real property and contemplated a four-year renewal period. Thus, Defendants argue, EAG's claims predicated on the existence of the lease—breach of contract, implied covenant of good faith and fair dealing, and personal guaranty—must fail.”

However, Judge Tauro found that “EAG has sufficiently alleged that upon expiration of the lease, Il Tesoro became a tenant at will subject to the same terms as the original lease. A holdover tenant becomes a tenant at sufferance, ‘[b]ut a tenancy at sufferance is readily changed into a tenancy at will by express or implied agreement of the parties. Whether there has been such agreement is, of course, commonly an issue of fact.’ (citation omitted) The tenant at will holds the premises ‘according to the terms of the written lease, in the absence of a new agreement,” Boudreau v. Johnson, 241 Mass. 12, 134 N.E. 359, 361 (Mass.1922).  ‘the only difference being that, instead of being in under a written lease and for a fixed term, they [are] in by parole and as tenants at will.’ Id, quoting Walker Ice Co. v. Am. Steel & Wire Co., 185 Mass. 463, 70 N.E. 937, 939 (Mass.1904). ”

The defendant/tenant’s motion to dismiss was denied. I have no idea how the case ended up in Federal Court.

 

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

 

http://www.lawbas.com

 

IF A TREE IS GROWING THROUGH THE MIDDLE OF YOUR ROOF, IT MAY BE ABANDONED.

The Carver, Massachusetts Zoning By-law says “A nonconforming use or structure which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning by-law.” In the recent Land Court decision in Gomes v. Collins, Gomes owned a non conforming structure in Carver and the buyer wished to raze the structure and construct a new one. The buyer was denied a building permit on the grounds that the building was not a protected lawfully pre-existing non-conforming structure. Judge Grossman found that the building has lost it non-conforming status whereas it had not been used for over 46 years and:  “In point of fact, the structure lacks those basic elements that would permit one to characterize it as a residential structure. It is, at best, a modestly sized, deteriorating shell with a tree growing up through the roof and through the lone front dormer. The front portion of that roof and the dormer, which are readily visible in at least two of the photographic exhibits, are in a state of near collapse appearing to be held up by the tree, thereby leaving the structure entirely open to the elements. The windows and doors are gone, having been boarded up. The photographic exhibits indicate that the plastered ceilings are largely gone; the wall studs are plainly visible as well. Moreover, the structure is devoid of those critical elements that one would ordinarily associate with a residence or single family dwelling. In this regard, the photographs disclose the that there are no kitchen or sanitary facilities, no sleeping accommodations, no plumbing or electrical service” Gomes v. Collins, 11 MISC 446909 HMG, 2013 WL 485206 (Mass. Land Ct. Feb. 7, 2013)

This case took 3 years to reach this conclusion.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

A PLANNING BOARD MAY WAIVE ITS REQUIREMENT THAT IT SHALL NOT GRANT WAIVERS.

You already know that MGL Chapter 41, Section 81R allows planning boards to issue waivers of their subdivision rules and regulations when considering subdivision applications. What happens when the rules of a planning board also say that certain requirements are “nonwaivable”?  Judge Piper in the recent Land Court decision of Cater v. Bednarek, 98 MISC 250365 GHP, 2013 WL 431342 (Mass. Land Ct. Feb. 4, 2013) concluded that a planning board regulation that says that certain regulations may not be waived, may be waived; otherwise Section 81R would be trumped by a local regulation. Judge Piper wrote: “I conclude, as I did at the time judgment entered initially, that the purported ‘no waiver’ language of the Truro board's subdivision rules and regulations, which suggests that the fourteen foot width of road surface rule should ‘in no instance.. be waived,’ is merely precatory, and does not as a legal matter prevent the board, if and when presented with a meritorious application for waiver as to a road surface less than fourteen feet, from granting that waiver. None of the parties have urged me to a different view, all apparently accepting that under subdivision control law in Massachusetts, a planning board may not lawfully bulletproof its regulations by adopting one rule which makes some or all of the rest of them incapable of waiver, no matter the circumstances which later present themselves when a waiver is sought” Cater v. Bednarek, 98 MISC 250365 GHP, 2013 WL 431342 (Mass. Land Ct. Feb. 4, 2013).

As the recession comes to a close and housing construction begins again, I look forward to hearing your stories of how you explained this to your favorite planning board.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com