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Adrian v. Rabinowitz

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Property Law Keyed to Cribbet

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Citation. 22 Ill.116 N.J.L. 586, 31 Gummere 586, 186 A. 29 (Sup. Ct. 1936)

Brief Fact Summary. Defendant Rabinowitz leased store premises to Plaintiff Adrian to commence on a date certain, and after the payment of the first month’s rent by Plaintiff, the premises were not available due to a hold over tenant.

Synopsis of Rule of Law. When a lease term is to commence in the future, the lessor undertakes an implied duty to make the premises available and open to the lessee’s entry on the first day of the lease term.

Facts. On April 30, 1934, Defendant Rabinowitz leased store premises to Plaintiff Adrian, who intended to run a shoe store in the premises. The term of the lease was six months with an option to renew. The rent was to be paid in advance. Plaintiff paid the first month’s rent prior to the commencement of the lease term. The lease was to begin on June 15, 1934. When the lease was entered into between Plaintiff and Defendant, the premises were leased and occupied by another, who did not respond to the Defendant Rabinowitz’s notice to vacate on June 15. Thereafter, the Defendant deemed herself obliged to institute eviction proceedings against the hold over tenant which resulted in a judgment of removal, executed on July 7, 1934, and the Plaintiff took possession two days later. The Plaintiff then sued Defendant in two counts, the first being that Defendant breached an implied duty “to give and deliver possession” of the premises on the first day of the term of the lease and secondly, tha
t the lease provided an express covenant to put the lessee in possession on that day. At the trial, without jury, the lower court found for the Plaintiff and measured damages at $500, which the court found to be the loss sustained by Plaintiff in the resale of seasonal merchandise. The court also ruled that Plaintiff was not liable for rent for the portion of the lease during which he was deprived of possession and awarded a $25 set-off for the rent due beginning July 15, 1934. Defendant appealed.

Issue. Did the lease contract impose on the lessor a duty of putting the tenant in actual and legal possession of the premises at the beginning of the lease term?

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