C & K Market, Inc. v. Roccasalva
246 Or. App. 277
| Or. Ct. App. | 2011Background
- In 2006, C & K Market leased space to Roccasalva for a liquor store, with base rent and equipment rent; breach remedies allowed termination after 10 days’ notice if default is not cured.
- In Oct. 2007, C & K discovered unpaid equipment rent, and despite repeated invoicing, elected not to terminate immediately due to store value.
- In Nov. 2009, C & K gave notice of potential termination on Dec. 1 if the full accrued equipment rent remained unpaid; defendant continued to pay base rent for Dec. 2009 and Jan. 2010, which C & K accepted.
- On Dec. 1, 2009, C & K purportedly terminated the lease due to nonpayment of equipment rent; FED action to eject was filed Jan. 26, 2010.
- The trial court held that by accepting the December and January base rent payments, C & K elected to continue the lease despite the breach; the appellate court affirmed that acceptance of rent after breach can bar termination under Oregon law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landlord’s acceptance of rent after breach constitutes election to continue lease and defeat termination. | Roccasalva argues termination was valid due to breach and continued nonpayment. | Roccasalva argues accepting base rent after breach does not elect to continue the lease. (Use defendant’s argument per context) | Yes; landlord’s acceptance of base rent after breach elected to continue the lease, defeating possession. |
Key Cases Cited
- KMT Enterprises, Inc. v. Nyssen, 959 P.2d 640 (Or. App. 1998) (acceptance of rent after breach can imply continuation of the lease)
- Smith v. Hickey, 607 P.2d 787 (Or. App. 1980) (acceptance of performance after breach discharges the breach)
- Reeves v. Baker, 530 P.2d 30 (Or. 1974) (waiver via rent acceptance; reinstatement concept)
- Alderman v. Davidson, 954 P.2d 779 (Or. 1998) (waiver of one provision not automatic waiver of another; distinguishable facts)
- Clackamas Town Center v. Jandel Foods, Inc., 744 P.2d 280 (Or. App. 1987) (landlord waives breach by accepting rent for the period in question)