Summary
In Ridgefield Investors, Inc. v. Mae Ellen, Inc., 57 So.2d 842 (Fla. 1952), for example, the lease contained a restrictive use clause.
Summary of this case from Leonard, Street Deinard v. Marquette A.Opinion
March 28, 1952.
Appeal from the Circuit Court, Orange County, Terry B. Patterson, J.
John G. Baker, Alan G. Grant, Jr., and Baker Thornal, Orlando, for appellant.
J. Thomas Gurney, Orlando, for Mae Ellen, Inc. H.M. Voorhis and W.H. Poe (of Maguire, Voorhis Wells), Orlando, for Joseph Brant.
This is an appeal from a final decree construing the terms of a written lease.
Ridgefield Investors, Inc. was the landlord and plaintiff in the Court below. We will refer to it hereafter as the landlord. Mae Ellen, Inc. was the lessee and will be hereafter referred to as the lessee. Joseph Brant was the sub-tenant, or assignee, and will be hereafter referred to as the sub-tenant.
At the time the original lease was executed the building in question had not been constructed. Paragraph 2 of the original lease provided as follows: "The premises, a store, shall be used for the display and sale at retail of ladies ready-to-wear apparel, handbags, millinery, shoes, hosiery, cosmetics, bridal veils, veiling, fascinators, wrap-arounds, women's headwear and for no other purpose."
Paragraph 4(b) of the lease provides that the rent is contingent in part on the amount of the gross sales, the landlord to receive six per cent of the amount of the annual gross sales in excess of $150,000.
Paragraph 6 permits the premises to be sublet, but provides that the sub-tenant "may not conduct any business that conflicts with the business of any of the other tenants then in the building, nor with businesses which may be contemplated by leases then signed."
Section 16 of the lease reads as follows: "The covenants, conditions and agreements contained in this lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs, successors, and, except as otherwise provided herein, their assigns."
The facts in this case are undisputed. The terms of the lease are so clear, certain and unambiguous that it was proper for the Court to construe the same without resorting to parol or extrinsic evidence.
The important question is: "Does the lease permit a sublessee to use the premises for any purpose other than that permitted by Clause 2, and specifically does it permit the sublessee to use the premises for a gift shop?"
The lower court correctly answered this question in the affirmative.
So long as there was no sublease or assignment, the provision of paragraph 2 of the lease controlled the use of the premises as to the original lessee.
The parties "with their eyes open" and "dealing at arm's length" inserted paragraph 6, which specifically provided that the original lessee was permitted to sublet the premises and without the consent of the landlord, or the original lessor. When the occupancy of the building changed, under the provision of Section 6 of the lease, there was no limitation as to the use of the premises except that the sub-tenant "may not conduct any business that conflicts with the business of any of the other tenants then in the building nor with businesses which may be contemplated by the leases then signed".
There is no contention here that the use of the premises for a gift shop conflicts with any business of any other tenant then in the building, or with any business which was contemplated at the time the original lease was signed. As a matter of fact, it is admitted by the written briefs and by the oral argument of the landlord that the subtenant's business is not in conflict with that of other tenants and that the provision of Section 6 of the lease is not being violated.
The appellant apparently relies solely upon paragraph 4(b) of the lease which provides that the rent is contingent in part on the amount of the gross sales and that the landlord should receive 6% of the amount of the annual gross sales in excess of $150,000. The landlord insists that the use of the premises for a display and sale at retail of ladies ready-to-wear, etc. provided for in paragraph 2 of the lease was inserted because of this gross sales feature set forth in paragraph 4(b). If the parties so intended they should have used clearer words to express their intention. The Court cannot re-write the lease for them.
This is not a case where a sub-tenant was prohibited by the terms of the lease from using it for any purpose not in conformity with the general use of other portions of the building, or prohibits him from using the premises for any purpose which might be obnoxious or objectionable to other tenants of the building. The only prohibition was that he would not conduct any business "that conflicts with the business of any other tenants then in the building". It is admitted on the record by the appellant that the business of a gift shop does not conflict with any other business on the premises.
Affirmed.
SEBRING, C.J., CHAPMAN, J., and PARKS, Associate Justice, concur.