783 So. 2d 1 | Ala. Civ. App. | 1999
Walter Achenback, Elizabeth Graham, Howard Kaneff, and Jeanette Sprunk ("the defendants"), appeal from a partial summary judgment entered in favor of FB Huntsville Owners, LLC., and Twenty-Fourth Huntsville Corporation. This case was transferred to this court by the supreme *2
court, pursuant to §
A summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P. "If the moving party makes a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to [present substantial evidence creating such an issue]." Hinkle v.Burgreen Contracting Co.,
The facts, viewed in the light most favorable to the defendants, are as follows: FB Huntsville filed a complaint seeking a sale of certain commercial real property and a division of the proceeds. The defendants and FB Huntsville were co-owners of the property. The previous owner of the property had entered into a ground lease of the property, which provided for an initial rental period from March 1, 1971, to November 30, 1995, with irrevocable renewal rights for successive five-year periods, up to an aggregate of 99 years. The lease was not recorded, as required by §
The defendants challenged the validity of the lease with Twenty-Fourth Huntsville.1 Twenty-Fourth Huntsville moved to intervene in the action, and its motion was granted. Twenty-Fourth Huntsville sought a judgment declaring that the lease was not made void by §
In opposition to the motion, the defendants argued that the lease was void and unenforceable. They further argued that Twenty-Fourth Huntsville had failed to timely pay its rent and had allowed waste to occur on the property.
The trial court entered a partial summary judgment in favor of FB Huntsville and Twenty-Fourth Huntsville, finding that the defendants had known of the lease before Twenty-Fourth Huntsville exercised its renewal option and, thereafter, had accepted rent payments for several years. The trial court held that the defendants were estopped from claiming that the lease was void on the basis that it did not comply with §
Section
"No leasehold estate can be created for a longer term than 99 years. Leases for more than 20 years shall be void for the excess over said period unless the lease or a memorandum thereof is acknowledged or approved as required by law in conveyances of real estate and recorded within one year after execution in the office of the judge of probate in the county in which the property leased is situated."
The dispositive issue is whether the lease in question is valid and enforceable notwithstanding the terms of §
Eastwood Mall involved a lease for a 20-year term, ending on August 31, 1980, with two 10-year-extension options. Before the original 20-year lease term expired, the tenant notified the landlord that it intended to exercise the first 10-year option, and the parties executed an agreement to that effect. In August 1984, the landlord sold his interest to Eastwood Mall and assigned to it all of the mall leases, "together with any and all extensions and renewals of any thereof." 518 So.2d at 45.
After accepting rental payments for almost two years, Eastwood Mall notified the tenant that the lease was void as of September 1, 1980, under §
In the present case, the defendants were estopped from denying the validity of the lease, because they had accepted rental payments long after the expiration of the first 20 years of the lease. The "plain purpose" of §
The defendants also argue that the lease is void and unenforceable because Twenty-Fourth Huntsville breached its lease by committing waste and failing to timely pay rent and, they say, under Eastwood Mall, the lease is void. The supreme court inEastwood Mall did note that the tenants, it "appeared," had performed all obligations under the lease; however, the court's holding in Eastwood Mall is to prevent a landlord who has actual knowledge of a lease and accepts rents under it from then seeking to have the lease declared invalid under §
The defendants argue that the trial court committed reversible error by failing to strike the affidavit of Richard Birdoff. Birdoff's affidavit was filed in support of FB Huntsville's summary-judgment motion, which was later joined by Twenty-Fourth Huntsville. The defendants contend that Birdoff's affidavit was not based on personal knowledge. We disagree. Birdoff was a partner in FB Huntsville, and the affidavit states that it is based on Birdoff's personal knowledge, in accordance with Rule 56(e), Ala.R.Civ.P. Again, FB Huntsville and the defendants are co-owners of the property and it is one of the lessors under the lease. Birdoff's affidavit concerned the ownership of the subject property, the terms of the lease with Twenty-Fourth Huntsville, and the payments of rent under the lease. Given these facts, we conclude that any contention that Birdoff's affidavit was inadmissible due to lack of personal knowledge is without merit.
The defendants next challenge the trial court's ruling on a discovery matter. However, that issue is not properly before this court on this appeal from a partial summary judgment on the question whether the lease is void and unenforceable, under §
The defendants argue that Twenty-Fourth Huntsville's renewal of the lease is invalid under the Statute of Frauds, §
Based on the foregoing, we affirm the judgment of the trial court.
AFFIRMED.
Robertson, P.J., and Monroe and Thompson, JJ., concur.
Crawley, J., concurs in the result.