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May 30, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Nan R. Huhn, Trial Judge

Newman, Ferren, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

In this appeal from an order of the Superior Court awarding possession of certain commercial rental property to the landlord, We conclude that further proceedings are necessary by the trial court to ascertain the intent of the parties in agreeing to the now-disputed portion of a lease and, contingently, to consider lesser remedies for the alleged breach than forfeiture.

Tauber, the owner of the store-front property, filed suit for possession in the Landlord and Tenant Branch alleging that the defendant-tenants, by blocking and cementing over three street-level windows, had breached a provision in the lease requiring the landlord's permission before any "structural changes or alterations" could be made. *fn1 The tenants, while conceding that they covered the windows, argued that given the poor condition of the windows and the immediate hazard they posed to the tenants' bakery business, their action constituted a "repair" that the lease authorized them to undertake. In awarding possession to Tauber after a bench trial, the court stated:

Defendant concedes that conditions of the lease were breached yet asserts that the controlling repair terms in the lease were unclear. The court finds the terms and conditions of the lease are unambiguous and that Defendants had ample opportunity to cure the broken conditions of the lease or raise affirmative defenses to the breach. Defendants did not restore the premises to its original condition nor did the defendants raise affirmative defenses to the breaches. [Emphasis added.]

Having assumed that the tenants conceded a breach, the court did not have to decide whether the removal of the windows had in fact breached the clause forbidding structural changes. The court did "find [] that the terms and conditions of the lease are unambiguous," presumably meaning that it had been breached, but we are unable to treat this as a factual finding given -- as we shall see -- the court's erroneous assumption that a breach had been conceded. On appeal, the tenants deny that they made any such concession and contend that the court erred in awarding possession to Tauber without expressly finding that a structural change or alteration had been made. They further contend that even if a breach was committed, forfeiture of the premises Was too drastic a remedy on the facts of this case.

Since we are unable to find in the record a concession by the tenants that they breached the terms of the lease, we must reverse the trial court's decision and remand for a determination whether cementing over the windows was a structural change or alteration within the terms of the lease. We hold further that if, on remand, the tenants are found to have breached the lease, the court must consider remedies because forfeiture would be an excessive remedy in the circumstances of this case.

I. Breach

On January 31, 1986, Tauber leased the ground floor and basement of the building in question to a corporation controlled by Len Weiss, who opened an ice cream parlor on the premises. The lease term was for ten years with .provision for three five year options to renew. The relevant portions of the lease provided:

6. Tenant Will make any and all repairs to the premises hereby leased during the term of this lease.

28. Tenant will not make any structural changes or alterations in the premises hereby let . . . without the written consent of the landlord . . . .

During his tenancy, Weiss, with Tauber's consent, divided the first floor in half *fn2 and sub-leased the unused and unrenovated portion to an antique dealer who abandoned the premises shortly thereafter. In April of 1986, Weiss, with the consent of Tauber, sold his business along with the lease to another corporation controlled by Andrew Shapiro for approximately $58,000. *fn3 Shapiro then sublet one part of the property to Masoud Mossadegh, who continued operating the ice cream business as the Inside Scoop, *fn4 and the other part to Hector Quinteros Who planned to open a bakery. Since only the half of the premises housing the Inside Scoop had been renovated, Quinteros spent some $8,000 setting up his bakery. In the course of this renovation, Quinteros removed bars from three of the four windows that faced a side alley, and had these windows cemented over.

On March 19, 1987, after discovering that the windows had been removed, Tauber sent a letter to Shapiro stating that he considered the tenants to be in violation of clause 28 of the lease and demanding that the windows be restored to their previous condition within ten days When Shapiro failed to comply, Tauber filed this action for possession on April 7, 1987.

At trial, Quinteros and Shapiro testified that before the renovation all of the window panes had been broken and were covered with plywood, cardboard, or rags. They complained that garbage was often left on the window ledge or thrown through the window itself, and that they were concerned for the security of the premises and their equipment. They maintained that removal of the windows was essentially a "repair" of the premises and one necessary to enable Quinteros to operate his bakery. Nowhere in their testimony did they concede a breach of the agreement. On the contrary, at the close of Tauber's case they sought a directed verdict on the ground that he had failed to present evidence on whether removal of the Windows was a structural alteration and hence a violation of the lease. In a post trial memorandum answering a question posed by the court, *fn5 the tenants argued that "this case involves an honest dispute about the interpretation of a lease," including a dispute over how the terms "structural change" and "alteration" should be defined. They renewed their argument that Tauber had failed to establish a breach. In their reply to Tauber's memorandum, they reiterated that ...

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