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Breach of Lease Must Be Material To Warrant Eviction

Written by on Monday, 02 December 2013 1:38 pm

A typical residential lease agreement will contain a variety of provisions specifying what the tenant must do and what the tenant must not do. Many of these have nothing to do with the timely payment of rent. A lease may have a provision that prohibits the tenant from smoking on the premises. Another term of the lease might require the tenant to maintain the landscaping. Etc. etc.

If a tenant does not comply with some provision of the lease, then the landlord may give him a notice (usually, three-day) to perform the covenant or to quit the premises. If the tenant fails to do so, then the landlord may evict him. Right? No, not necessarily.

Recently the Superior Court of Los Angeles County heard a case where the landlord, NIVO 1 LLC, sought to evict tenant Amiteria Antunez. The tenant had been served with a 3-day notice to perform which said the tenant was "in violation of paragraph 17 of your lease agreement…" Paragraph 17 of the lease agreement stated: "INSURANCE: TENANT must maintain a personal property insurance policy to cover any losses sustained to Tenant’s personal property or vehicle.

It is acknowledged that LANDLORD does not maintain this insurance to cover personal property damage or loss caused by fire, theft, rain, water overflow/leakage, acts of GOD, and/or any other causes. TENANT’S failure to maintain said policy shall be a complete waiver of TENANT’S right to seek damages against LANDLORD."

At trial the defendant testified that she had not had renter’s insurance since she moved into the premises in 1998. Nor did she obtain such insurance after receiving the 3-day notice. The trial court found that the defendant’s failure to obtain such insurance was not a material breach and, as such, could not support a forfeiture of the lease. The landlord appealed.

In its review (NIVO LLC v. ANTUNEZ, Appellate Division, Superior Court, Los Angeles County, No. BV 030104, July 5, 2013), the appellate court noted earlier case law which held that, "Whether a breach is so material as to constitute cause for the injured party to terminate a contract is ordinarily a question for the trier of fact," and also that, "Whether a particular breach will give plaintiff landlord the right to declare a forfeiture is based on whether the breach is material."

In the case at hand, the trial court had made the determination that the failure to maintain insurance was a "trivial breach" because the "provision benefits the tenant, not the landlord." The appellate court upheld the trial court’s finding in favor of the tenant.

Some landlords might be upset by this ruling and the case law that undergirds it. How is a landlord - or a tenant - supposed to know if a breach of a particular covenant will be considered material? Some have suggested it might be helpful to identify some of the more important lease obligations as "material" and to include an explanation as to why they are. Simply saying that all the provisions are material probably wouldn’t go very far.

Did anyone say that this would be easy?

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  About the author, Bob Hunt


  • Comment Link Rosa Morales Monday, 20 April 2015 4:57 pm posted by Rosa Morales


    I received a ten day notice of intent to terminate lease agreement for material breach / ARS 33 - 1368A

    They are telling us that they have numerous complaints of a noise disturbance, loud fights and yelling in the apartment and hallways, loud music at all times of the night, "constant traffic" in a out of the apartment" (to tell you the truth I do not know what that is) that we not pick up after our pet, I was in shock! none of this is true at all, we went to talk to the manager and she actually accused us and she said that she got videos and later she said they were only verbal complaints... can you please advice me on what to do next? Thank you I'm desperate

  • Comment Link al Thursday, 05 December 2013 4:59 am posted by al

    Even though we are landlords and must evict often for non-payment, I believe this ruling to be fair and correct.

    The insurance requirement as stated covers only the tenant in the case of any action.

    The landlord obviously must maintain insurance on the property for property damage and liability for the common areas.

    However, he also might be open for legal action if something happens in any rental unit, whether property damage or personal injury. At the same time, the tenant also might be open for the same legal action, whether for personal injury or property damage.

    Any tenant who does not have a renters policy and is depending on the landlords policy for their protection will have an expensive awakening if anything happens in their rental unit and misuse, unauthorized use, indifference to the stated rules, etc. can be proven.

    We require our tenants to carry a renters policy with our entity being named as co-insured and property damages payee.

    This makes the clause material.

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