When A Tenant Has Been Using More Space Than Allowed Under A Lease For More Than A Decade, Is The Landlord Out Of Luck? (Podcast)

• Published date: 20 September 2022
• Subject Matter: Real Estate and Construction, Landlord & Tenant - Leases
• Law Firm: Nossaman LLP
• Author: David Graeler and Maya Hamouie

A problem that occasionally arises between a landlord and tenant who have a long-term written lease involves the prolonged use by the tenant of more space than permitted by the lease. In the latest episode of Digging Into Land Use Law, Nossaman Real Estate Group Co-Chair David Graeler and associate Maya Hamouie provide a case study addressing this issue. David and Maya dig into various questions, such as whether a landlord's claim for breach of contract is time barred or whether the continuous accrual doctrine might apply. They also discuss whether the landlord may be able to assert a continuous trespass theory in lieu of breach of contract.

Transcript:

0:00:00.7 David Graeler: Today, we're talking about a problem that often arises between a long-term landlord and a tenant. And that is where the tenant ends up using more space than is permitted by a written lease agreement and has done so for over a decade. Is this a claim that would be time barred for the landlord, or might the continuous accrual doctrine save the landlord? And if it can't be saved by the continuous accrual doctrine, might the landlord instead be able to assert a continuous trespass theory?

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0:00:37.5: Welcome to Digging Into Land Use Law. Nossaman's podcast covering the development of all things in, on, or above the ground.

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0:00:53.6 DG: Welcome to Digging Into Land Use Law. My name is David Graeler, and I am the co-chair of Nossaman's Real Estate Group, and head of Nossaman's Litigation Department. I am joined today by my colleague, Maya Hamouie, who is also an associate in our real estate group. Our firm represents one of the major wireless telecommunications carriers and various real estate matters throughout the state of California. In a particular matter that Maya and I are going to be talking about today, our client was a long-time tenant who maintained telecommunications equipment on the roof of a commercial property in Southern California.

0:01:33.9 DG: Our client paid rent to the landlord to maintain this equipment and to operate its facilities. Eventually, after years of being on the roof, the landlord asserted a claim that our client breached the lease agreement by using significantly more space on the roof than permitted under the lease agreement. And therefore, the landlord was seeking back rent and substantial damages. The amount of space used by our tenant though was effectively the same since the lease began decades earlier. Ultimately the landlord's claim against our client raised several key questions. First, when does the applicable statute of limitations period begin to run...