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VND12/19/2003
us is distinguishable from Rector because the maintenance charges at issue fall directly under the heading "additional rents." This case is more analogous to River View Assoc. in which the court concluded utility and insurance charges were not additional rent because the lease did not so provide, but found taxes, licenses, and water to be additional rent because they were described as such in the lease. 306 N.Y.S.2d 153, 155-56 (N.Y. Sup. Ct. 1969).
[ ] Morningside Studios v. Lucille Hotel Corp. explains in detail why failure to pay additional rent under a commercial lease may be the basis for an order and warrant of eviction:
As a matter of business practice and policy, commercial leases designate certain tenant's obligations as "additional rent" to enable the landlord to enforce them effectively and to proceed summarily against a tenant who defaults in this obligation. . . . In my opinion, these obligations [real estate taxes, sewer and water charges, assessments, vault and rental taxes] are sufficiently material to the lease to warrant their enforcement by a warrant of eviction. Failing to do so would result in the tenant not performing its material obligations as diligently as agreed and would place the landlord in a difficult position.
334 N.Y.S.2d 735, 737 (N.Y. Civ. Ct. 1972).
[ ] The court explained:
The expression "additional rent" is deliberately used as words of art, and is well-known in the real estate industry as being as enforceable as the monthly rental. Therefore, the failure to pay "additional rent" under a commercial lease may be the basis for an order and warrant of eviction and not only for a money judgment.
Id.
[ ] The Restatement (Second) of Property has also explained that payments for the use of the premises, such as taxes or other sums, may be treated as rent by an agreement in the lease, so that a default will give rise to all the remedies for a failure to pay rent. Restatement (Second) of Property * 12.1 cmt. a, illus. 1 (1977). The Restatement bases this assertion on Allbaugh v. United States, 184 F.2d 109 (8th Cir. 1950). Id. at reporter's notes p. 421. Allbaugh states:
By long-settled principles of landlord and tenant law, where a lessee has agreed to pay taxes as rental and does not make payment of them to the proper public authority when they are due, the amount thereof becomes a debt owing to the lessor and is collectible as such, like any other delinquent rent.
Allbaugh, 184 F.2d at 112.
[ ] We conclude the common area maintenance charges, as "additional rents," and defined as such in the lease, are rents for the purposes of summary eviction under N.D.C.C. ch. 33-06.
[ ] Because these additional rents were unpaid, VND claims it is entitled to automatic eviction. VND relies on South Forks for this proposition. South Forks Shopping Ctr. v. Dastmalchi, 446 N.W.2d 440, 444 (N.D. 1989). In South Forks, the tenant argued no rent was owed because the landlord was in breach of another part of the lease. Id. at 442. In South Forks this Court concluded it was "unaware of any authority in this state for permitting a commercial tenant to both remain in possession and refuse to pay rent when a landlord breaches a covenant of the lease, unless the terms of the lease so provide." Id. at 444. In South Forks, the landlord breached an agreement to lease different space to the tenant; this Court concluded this agreement was independent of the rent due for the lease of present space. Id. This Court held the two promises were not concurrent and conditional and therefore concluded that because rent was unpaid, South Forks was entitled to eviction. Id. at 4
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