Cho v. South Atlanta Associates, Ltd.

Andrews, Judge,

concurring specially.

I concur in Divisions 1 and 3, and in the judgment, but disagree with the conclusion reached in Division 2.

The majority holds that a question of fact exists as to whether the plaintiff (landlord) elected to terminate the defendants’ (tenant) obligation to pay further rent after the premises was re-leased to another tenant. After the defendants vacated the premises and defaulted on the lease, plaintiff advised defendants by letter that, as requested, a sign would be placed in the window of the premises in an effort to locate another tenant. The letter continued by adding: “However, please be advised that you are still fully obligated to pay minimum rent and expenses as defined in your Lease Agreement, per month, until such time as the Premises is released.”

The lease provides that in the event of the defendants’ default, plaintiff has the option, without notice, to take possession of the premises, relet it to another tenant, and demand that defendants pay any deficiency between the rent owed by defendants under the lease and the rent paid by the new tenant. By stating that upon re-leasing to another tenant, defendants will no longer be fully obligated to pay the minimum rent due, the letter simply recognizes the provision in the lease that the rent due from defendants would be reduced by the amount of rent paid by a new tenant. I do not find the language in the letter to be ambiguous or inconsistent with the provisions of the lease holding the defendants liable for any remaining deficiency after re-leasing. See Reahard v. Ivester, 188 Ga. App. 17, 19 (371 SE2d 905) (1988) (letter restated clear and unambiguous terms of lease agreement).

The trial court properly concluded, as a matter of law, that the letter evinced no intention on the part of plaintiff to terminate the defendants’ obligations under the lease. Id.