456 S.E.2d 268 | Ga. Ct. App. | 1995
On January 13, 1989, Melvin and Evelyn Meadows entered into an agreement to lease shopping center space from Murray Siegal for use as a laundromat. The lease, which had a five-year term, provided that the Meadows could not sublet the space without Siegal’s written consent. The lease further provided that if the Meadows entered into a sublease, they “shall at all times remain fully responsible and liable for the payment of the rent. . . .” On September 12, 1990, the Meadows sold the laundromat and subleased the space to subtenants Sabrina and Clinton Fuller. The sublease agreement, which was executed by Siegal, the Meadows and the Fullers, also provided that the Meadows remained liable to Siegal for any obligation due under the lease.
The Meadows contend the trial court erred in granting the motion because a genuine issue of material fact remained as to whether Siegal made an affirmative election to make Odoemele the actual tenant, thereby releasing them from any responsibility to pay the rent. Where a subtenant occupies the premises with the consent of the landlord, that subtenant “has no right to impose [another subtenant] upon the landlord without his consent. [Cit.]” Block v. Brown, 199 Ga. App. 127, 128 (1) (404 SE2d 288) (1991). “The provision against assignment, however, is solely for the protection or convenience of the landlord and may be waived and, when the landlord treats the lease as assigned, he is estopped from denying the validity of the assignment. [Cits.]” Id. Accordingly, “if someone other than the lessee or his recognized assignee occupies the premises and pays rent to the landlord as if he were a subtenant, the landlord may elect to treat him as a tenant occupying under the lease and bind himself and the tenant to the unexpired portion of the lease or expel him as a mere intruder. The landlord’s election may be effected by an express recognition of the subtenant or be implied from affirmative acts and conduct. The election establishes privity of contract between the subtenant and the landlord and renders the former liable to the landlord as a tenant. [Cits.] It is necessary, therefore, to determine [whether Siegal’s] acts indicate [that he accepted Odoemele] as his tenant.” Id. at 129.
While such a determination is generally for the jury, Step Ahead v. Lehndorff Greenbriar, 171 Ga. App. 805 (321 SE2d 115) (1984), in the instant case there was nothing, other than the Meadows’ unsubstantiated allegations, to show that Siegal made such an election. Siegal’s express conduct indicated he did not intend to release the Meadows from their obligations and accept Odoemele as his tenant. Siegal
Judgment affirmed.