Cowell Sales Co. v. Aigner

STERNBERG, Judge.

The issue in this appeal is whether service of a 3-day notice on a tenant who is delinquent in rent constitutes an election by the landlord to terminate the lease thus doing away with the tenant’s obligation to pay rent for the balance of the term. We hold that it does not and, therefore, affirm the judgment of the district court.

When defendant Phillip R. Aigner, the tenant, was delinquent in rent, the landlord, plaintiff Cowell Sales Company, served a standard form “Demand for Payment of Rent or Possession.” The form reads in pertinent part as follows:

“You are hereby notified that the undersigned landlord of the hereinafter described premises demand that you shall, within three days of the time this notice is served upon you, either pay .. . the amount now due by you, for rent for said premises from May 1, 1979, to May 31, 1979, which you occupy as tenant ... or deliver to the undersigned the possession of said premises.”

The tenant moved out within the 3-day period, returned the keys to the landlord, and left the premises vacant. The landlord placed a “for rent” sign on the property and relet it some 3 months later.

We agree with the trial court that, under the terms of the lease, the landlord’s retaking of possession did not terminate the lease so as to relieve the tenant of his obligation to pay rent. Also, the trial court’s finding of fact that retaking of possession did not constitute a termination of the lease, being supported by evidence in the record, is binding on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970). Therefore, the tenant was obligated under his covenant in the lease to pay rent for the full term, unless, as happened here, the landlord leased the premises to another. The controlling language of the lease is:

“It is further mutually agreed, that in case said premises are left vacant and any part of the rent herein reserved be due and unpaid, then the landlord may, without in anywise being obliged so to do, and without terminating this lease, retake possession of said premises and rent the same for such rent and upon such conditions as the landlord may think best, making such changes and repairs as may be required . . . and said tenant shall be liable for the balance of the rent herein reserved until the expiration of this lease.” (emphasis added)

The trial court properly interpreted the documents. The demand for payment or possession neither states nor implies that the obligation to pay rent under the lease will be waived if the tenant vacates. Significantly absent is any statement suggesting that the lease will be terminated if the tenant vacates. On the contrary, the lease contains specific language that retaking possession does not terminate the lease. See McArthur v. Rostek, 483 P.2d 1351 (Colo.App.1971) (not selected for official publication); Grolier Society, Inc. v. International Realty Co., 482 P.2d 394 (Colo.App.1971) (not selected for official publication).

To interpret the documents as the tenant urges would be to disregard the language used by the parties to express their intent, and would place a lethal weapon in the hands of tenants who wish to break long-term leases: A tenant so motivated would merely have to skip one month’s rent, gratefully accept the landlord’s notice to pay or get out, move out, and thereby escape his contractual obligation.

Barlow v. Hoffman, 103 Colo. 286, 86 P.2d 239 (1938), relied upon by the tenant is distinguishable on its facts. While the contents of the notice and demand and the controlling language of the lease are not set forth in the opinion, the Barlow court stated that the landlord served a notice and demand “for the express purpose of terminating the lease.” That is not the case here. Cf. Ruston v. Centennial Real Estate & Investment Co., 166 Colo. 377, 455 P.2d 64 (1968).

The judgment is affirmed.

PIERCE, J., concurs. TURSI, J., dissents.