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VND12/19/2003
t evidence on whether rent was paid.
III.
[ ] VND argues the trial court erred in failing to summarily evict, because Leevers admitted it failed to pay $20,000 in past due "additional rents" and over $10,000 in past due pro-rata portions of the landlord's liability insurance.
A.
[ ] Whether failure to pay $20,000 in past due "additional rents" is sufficient to compel summary eviction depends on whether the "additional rents" are considered rents for the purposes of N.D.C.C. * 33-06-01(4).
[ ] Section 33-06-01, N.D.C.C., provides the grounds for maintaining a summary eviction action. Section 33-06-01(4) provides that an action of eviction to recover the possession of real estate is maintainable in the proper district court when a lessee fails to pay rent for three days after the rent becomes due.
[ ] Section three, additional rent, of the lease agreement provides: Lessee agrees to pay its pro-rata share of mall maintenance and cleaning, mall lighting, mall landscaping, mall heat and air conditioning, and parking lot repair and maintenance. Such pro-rata share shall be made on the basis of the square feet of the floor area of the building which is a part of the demised premises as related to the total [leaseable] square footage of the floor area in the Shopping Center.
[ ] Whether "additional rents" are considered rents for summary eviction purposes is discussed in Rector, Church Wardens and Vestrymen v. Chung King House of Metal, Inc., 747 N.Y.S.2d 292 (N.Y. Civ. Ct. 2002). This case deals with a summary nonpayment proceeding under New York Consolidated Law Service, Real Property Actions and Proceedings Law ยง 711, summary proceedings to recover possession of real property. The purpose of the New York statute is similar to the purpose of the North Dakota statute dealing with summary eviction. N.D.C.C. * 33-06-01. The purpose of each statute is to provide a landlord with an inexpensive, expeditious, and simple means to obtain possession of leased premises for nonpayment of rent. See Rector, 747 N.Y.S.2d at 295; see also Anderson, 2002 ND 60, * 11, 643 N.W.2d 24 (The purpose of the no-counterclaim provision in the eviction statutes is to get a speedy determination of possession.). We have held that claims arising from a lease unrelated to possession cannot be maintained in a summary proceeding. Anderson, at * 11. Similarly, the New York court has held that "claims arising from a residential lease which are unrelated to rent or additional rent cannot be maintained in a summary proceeding." Rector, 747 N.Y.S.2d at 295-96 (citing Binghamton Hous. Auth. v. Douglas, 630 N.Y.S.2d 144 (3rd Dept. 1995) (landlord may seek judgment for money owed for rent but not other charges) (citations omitted)).
[ ] According to New York law, whether a claim for electrical charges arising from a commercial lease can be maintained in a summary proceeding depends upon "both the character of the claim and the terms of the commercial lease." Id. at 296 (citations omitted). A summary proceeding action can be brought when the lessor and lessee stipulate that something is an additional rent and these additional rents are not paid. See River View Assoc. v. Sheraton Corp. of America, 306 N.Y.S.2d 153, 156 (N.Y. Sup. Ct. 1969); see also Petrakakis v. Crown Hotels, Inc., 158 N.Y.S.2d 15, 16 (N.Y. Sup. Ct. 1956) (taxes not treated as rent for purposes of maintaining summary proceeding action because unpaid taxes were not expressly made part of the rent).
[ ] In Rector, electrical charges were not additional rent because they did not fall under the definition of "additional rent" in the lease. Rector, 747 N.Y.S.2d at 297. The case before
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