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Chronic non-payment basis for eviction.

Chronic non-payment basis for eviction

Judge Wilford O'Connor has held that a tenant's repeated default in the payment of rent constituted a violation of a substantial obligation of the tenancy, such that the owner was awarded a final judgment of possession, with the case set down for a hearing on "use and occupancy" and attorneys fees.

As a result of the non-payment, the owner was compelled to commence six non-payment proceedings during a three-year period.

In West Coast Co. vs. Grafi, a summary eviction proceeding was brought against the commercial tenant based upon the tenant's chronic non-payment of rent, encompassing more than 30 of the 48 monthly payments due during the relevant time period.

Based upon the commercial tenant's chronic default in the payment of rent, the owner, represented by the law firm of Belkin Burden Wenig & Goldman, opted to bring an eviction proceeding seeking the termination of the tenancy, rather than simply bringing yet another non-payment proceeding, seeking to collect the rent.

The court noted that the obligation to pay rent under a lease in a timely manner is a primary obligation of a tenancy, such that the tenant's failure to timely comply constitutes a breach of a substantial obligation of the lease. In examining whether or not the failure on the part of the tenant warranted the termination of the leasehold and the eviction of the tenant, the court stated that it must examine "the totality of the circumstances surrounding the delinquency".

After a thorough examination of all of the credible evidence before the court, Judge O'Connor found that the tenant's present rent delinquencies, as well as those in the prior non-payment proceedings "were not due to any abatement defenses or inaccurate calculations of rent or any other reasonable excuse". As a result, the court found that the tenant had, indeed, breached a substantial obligation under the lease, and awarded a final judgment of possession in favor of the landlord.

Jeffrey L. Goldman, partner in Belkin Burden Wenig & Goldman stated:

"This commercial tenant apparently believed that it could continue in violation of its lease without fear that it might ultimately pay the penalty of forfeiture of the tenancy. The court correctly found that there was no persuasive logic or rationale underlying the tenant's failure to pay rent. Only by terminating the landlord-tenant relationship and awarding a final judgment of possession to the owner, coupled with an award of use and occupancy and attorneys fees, could the owner be made whole."
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Publication:Real Estate Weekly
Date:Sep 4, 1991
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