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202 MARKETPLACE vs. EVANS PRODUCTS CO., EVANS PRODUCTS COMPANY v. WILLIAM J. HEALEY

August 21, 1986

202 MARKETPLACE
v.
EVANS PRODUCTS CO., EVANS PRODUCTS COMPANY v. WILLIAM J. HEALEY, ROBERT T. HEALEY and 202 MARKETPLACE CORP., trading as 202 MARKETPLACE



The opinion of the court was delivered by: LORD, III

 O P I N I O N

 Plaintiff landlord seeks a declaratory judgment that defendant tenant has defaulted on various covenants of a lease defendant entered into with plaintiff's predecessor and that plaintiff, therefore, has the right to terminate said lease.

 The parties have submitted an evidentiary record and have agreed that I should decide this case, sitting without a jury, based upon that record. What follows constitutes my findings of fact and conclusions of law.

 Defendant Evans Products Company is a Delaware corporation which has its principal place of business in Oregon. Plaintiff 202 Marketplace is a Pennsylvania partnership, all of whose partners are citizens of states other than Delaware or Oregon. The amount in controversy is more than $10,000. I therefore have subject matter jurisdiction over this lawsuit.

 Plaintiff alleges that defendant violated the lease (1) by improperly maintaining the exterior of the demised premises, (2) by using areas outside of the demised premises which it was not permitted to use under the lease, (3) by allowing trash and debris to accumulate where they were not permitted, and (4) by advertising in ways prohibited by the lease.

 Since plaintiff has established its right to terminate the lease due to defendant's use of areas outside of the demised premises, I need not consider plaintiff's other allegations.

 Defendant rents a store and storage space in a shopping center owned by plaintiff. The lease demised a specific portion of the shopping center to the defendant and then proceeded to discuss the center's common areas.

 
Such parts of the Shopping Center as are not covered by store buildings or demised to Tenant according to the attached plot plan shall be called the "common area." The common area shall be maintained for unobstructed pedestrian traffic and for the parking of automobiles and other passenger vehicles of the Tenant and all persons trading with or doing business with Tenant and other occupants of premises located in the said Shopping Center.

 According to the lease, the common areas were "for the joint use of all tenants, customers, invitees, and employees."

 The lease also provided a mechanism by which the landlord could regain possession of the demised premises if the defendant defaulted on any of its covenants.

 
It is agreed that if any rents shall be in default or if Tenant shall default in any of the covenants herein contained, and should such default continue for thirty (30) days after receipt by Tenant of written notice thereof, it shall be lawful for Landlord to re-enter the demised premises and again have and enjoy the same.

 On May 12, 1982, Joseph Schwartz, plaintiff's independent property manager, wrote defendant complaining that lumber and other merchandise were being stored outside of defendant's "fenced area," and requested that defendant move its inventory inside its portion of the shopping center. On July 16, Robert T. Healey, one of plaintiff's partners, wrote defendant stating that plaintiff planned to restrict defendant "from using the exterior of the premises, which is common area, for the portable buildings that you sell, as we feel this adversely affects the center." On August 12, Schwartz again wrote defendant complaining that wood pallets, tractor-trailers and storage sheds were still being illegally stored in the center's common area outside the rented portion of defendant's premises.

 On August 17, 1982, more than three months after plaintiff's first written complaint, plaintiff's attorney wrote defendant terminating the lease due to, among other things, defendant's use of areas not demised to defendant by the lease. Although this letter could be construed as somewhat premature, in that the lease gives the defendant thirty days to cure after receiving notice of default, the letter clearly constitutes notice that plaintiff considered defendant's actions violations of its obligations under the lease. From that point on defendant clearly was aware that it had thirty days to cure. Not only does the letter refer to the thirty day cure period in another section, but since defendant drafted the form lease which ...


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