Buchanan v. Banta

15 Citing cases

  1. Kendall v. Ernest Pestana, Inc.

    40 Cal.3d 488 (Cal. 1985)   Cited 128 times
    Holding that tenant's interest in a sublease terminated upon the landlord's termination of the Lease, and affirming order that landlord entitled to receive 12 months of rent deposited by subtenant with Court subsequent to termination of lease and prior to denial of petition for relief from forfeiture

    In California these doctrines have been liberally applied. See Buchanan v. Banta (1928) 204 Cal. 73, 77, 78 [ 266 P. 547]; Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 342-343 [ 182 P.2d 182]; Bedford Investment Co. v. Folb (1947) 79 Cal.App.2d 363, 366 [ 180 P.2d 361]; Group Property,Inc. v. Bruce (1952) 113 Cal.App.2d 549, 556-557 [ 248 P.2d 761]; Karbelnig v. Brothwell (1966) 244 Cal.App.2d 333, 341 [ 53 Cal.Rptr. 335].

  2. People v. Klopstock

    24 Cal.2d 897 (Cal. 1944)   Cited 43 times
    Noting that "[t]he successive assignments . . . though made without the written consent of the lessor, were merely voidable, not void; there was no ipso facto termination of the lease by reason of the lessee's failure to obtain the lessor's written consent to assignment."

    The identical legal principle determinative of the point in issue in the unlawful detainer action brought with regard to this same lease and the breach of the covenant thereunder as to the condition of assignment ( Northwestern Pacific Railroad Co. v. Consumers Rock Cement Co., supra) is likewise applicable in this condemnation proceeding in establishing the rights of participation in the compensation award incident thereto. As is there stated at page 723: "The assignment of the lease without the consent of the lessor did not of itself terminate the lease or render the assignment void but the making of such assignment merely gave to the lessor certain rights to be exercised in the manner provided by law. ( Buchanan v. Banta, 204 Cal. 73 [ 266 P. 547]; Potts Drug Co. v. Benedict, 156 Cal. 322 [ 104 P. 432, 25 L.R.A.N.S. 609]; Garcia v. Gunn, 119 Cal. 315 [51 P. 684]; Licht v. Gallatin, 84 Cal.App. 240 [ 257 P. 914]; Ruppe v. Utter, 76 Cal.App. 19 [ 243 P. 715].) If the lessor desired to stand upon the covenant against assignment, he could have given notice of his election to declare a forfeiture of the lease and could have sued for breach of the covenant.

  3. Chapman v. Great Western Gypsum Co.

    216 Cal. 420 (Cal. 1932)   Cited 33 times
    Explaining why the precise "interest in the land" bestowed by an agreement that granted an option to purchase land was "immaterial" because it was apparent from the "total rights" included therein that the optionee had acquired a protectable property interest

    The only remedy for the breach of such a covenant would be the exercise by the lessor of his option to forfeit the lease. ( Buchanan v. Banta, 204 Cal. 73 [ 266 P. 547]; Garcia v. Gunn, 119 Cal. 315 [51 P. 684]; Randol v. Tatum, 98 Cal. 390 [33 P. 433]; Baker v. Maier ZobeleinBrewery, 140 Cal. 530 [ 74 P. 22]. See, also, Sexton v. Chicago Storage Co., 129 Ill. 318 [16 Am. St. Rep. 274, 21 N.E. 920, 923].

  4. R-Ranch Markets #2, Inc. v. Old Stone Bank

    16 Cal.App.4th 1323 (Cal. Ct. App. 1993)   Cited 16 times
    Holding that lease agreement recorded before the deed of trust was not extinguished by foreclosure sale, but unrecorded amendments executed after deed of trust was extinguished by the foreclosure

    Because Valley Center was the entity empowered to consent to the assignments, and because it did so by its conduct, the assignments were valid. (See Buchanan v. Banta (1928) 204 Cal. 73, 76-77 [ 266 P. 547] [valid assignment because landlord, although initially refusing the assignment, accepted rent from assignees without objection]; Weisman v. Clark (1965) 232 Cal.App.2d 764, 768-769 [ 43 Cal.Rptr. 108] [assignment in violation of lease's anti-assignment clause only voidable at lessor's election]; Martin v. Auerbach (1949) 94 Cal.App.2d 222, 225-226 [ 210 P.2d 321] [assignment of a lease in violation of an anti-assignment clause voidable at landlord's option; if he or she disregards the breach, the lease is valid and subsisting as to all other parties]; Taylor v. Odell (1942) 50 Cal.App.2d 115, 120-121 [ 122 P.2d 919] [restriction against assignment is a personal covenant for lessor's benefit and anti-assignment clause is waived by landlord allowing premises to be occupied with full knowledge of the facts].) Thus, we conclude the trial court properly found the assignments valid.

  5. Karbelnig v. Brothwell

    244 Cal.App.2d 333 (Cal. Ct. App. 1966)   Cited 31 times
    In Karbelnig, the court ruled that because of an anti-waiver provision in the subject lease, the landlord had not implicitly waived his right to assert a breach of covenant by accepting rent.

    [7] If the lessor accepts payments of rent from the assignee, even under a stipulation reserving the right to declare a forfeiture, the right is waived. (Rest., Property, § 421; Group Property Inc. v. Bruce, 113 Cal.App.2d 549 at p. 556 [ 248 P.2d 761]; Buchanan v. Banta, 204 Cal. 73 at pp. 77, 78 [ 266 P. 547]; Bedford Investment Co. v. Folb, 79 Cal.App.2d 363 at p. 366 [ 180 P.2d 361].) The California decisions holding that the acceptance of rent by the lessor, after knowledge on his part of a breach of covenant, may be held to constitute a waiver of such breach and an estoppel to assert a forfeiture of the lease, all involve lease contracts wherein there was no express agreement between the lessor and the lessee, such as is contained in paragraph 27 of the lease here under consideration, to the effect that the acceptance of the rent by the lessor after knowledge of a breach of covenant shall not be deemed a waiver of such breach.

  6. Weisman v. Clark

    232 Cal.App.2d 764 (Cal. Ct. App. 1965)   Cited 3 times

    " In Buchanan v. Banta, 204 Cal. 73, at pages 76-77 [ 266 P. 547], it was said: "The law is that where there is a clause in a lease that it shall not be assigned without previous written consent of the lessor, and this covenant is breached, the lessor has only the option to forfeit the lease for such breach; the assignment is not void, but voidable only at the option of the lessor, which option he must exercise according to law [citations]." [2] An assignment in violation of the covenant is not void and does not void the lease but passes the term, and the only remedy for such a violation is an action for breach of covenant.

  7. Sexton v. Nelson

    228 Cal.App.2d 248 (Cal. Ct. App. 1964)   Cited 17 times
    In Sexton v. Nelson (1964) 228 Cal.App.2d 248, the Fourth District concluded that a lease with a clause prohibiting transfer was not automatically terminated when the lessor transferred the lease to a corporation formed and wholly owned by him, merely for tax advantage.

    [6a] The determination of the trial court in the instant case that a transfer of the lease from the defendant to his corporation terminated the lease clearly is erroneous. [7] The breach of a provision against assignment confers upon the lessor, at his election, the right to effect a forfeiture of the lease in the manner authorized by law. ( People v. Klopstock, supra, 24 Cal.2d 897, 901; Chapman v. Great Western Gypsum Co., supra, 216 Cal. 420, 427; Buchanan v. Banta, 204 Cal. 73, 76 [ 266 P. 547].) [8] If the lessor does not elect to declare a forfeiture because of such a breach, the assignment in question is valid.

  8. Martin v. Auerbach

    94 Cal.App.2d 222 (Cal. Ct. App. 1949)   Cited 6 times

    The lessor has the option to declare a forfeiture of the lease or, ignoring the breach, to treat it as subsisting. ( Guerin v. Blair, 33 Cal.2d 744, 746-7 [ 204 P.2d 884]; People v. Klopstock, 24 Cal.2d 897, 901 [ 151 P.2d 641]; Chapman v. Great Western Gypsum Co., 216 Cal. 420, 427 [ 14 P.2d 758, 85 A.L.R. 917]; Buchanan v. Banta, 204 Cal. 73, 76 [ 266 P. 547]; Northwestern Pacific R.R. Co. v. Consumers Rock Cement Co., 50 Cal.App.2d 721, 723 [ 123 P.2d 872]; Licht v. Gallatin, 84 Cal.App. 240, 245 [ 257 P. 914].) [3] The assignment of a lease in violation of a covenant against assignment without the consent of the lessor is a binding assignment which passes the leasehold estate.

  9. N.W. Pac. R.R. Co. v. Consumers Etc. Co.

    50 Cal.App.2d 721 (Cal. Ct. App. 1942)   Cited 5 times

    We are of the opinion that this contention must be sustained. The assignment of the lease without the consent of the lessor did not of itself terminate the lease or render the assignment void but the making of such assignment merely gave to the lessor certain rights to be exercised in the manner provided by law. ( Buchanan v. Banta, 204 Cal. 73 [ 266 P. 547]; Potts Drug Co. v. Benedict, 156 Cal. 322 [ 104 P. 432, 25 L.R.A. (N.S.) 609]; Garcia v. Gunn, 119 Cal. 315 [51 P. 684]; Licht v. Gallatin, 84 Cal.App. 240 [ 257 P. 914]; Ruppe v. Utter, 76 Cal.App. 19 [ 243 P. 715].) If the lessor desired to stand upon the covenant against assignment, he could have given notice of his election to declare a forfeiture of the lease and could have sued for breach of the covenant.

  10. Taylor v. Odell

    50 Cal.App.2d 115 (Cal. Ct. App. 1942)   Cited 13 times
    In Taylor v. Odell, supra, the opinion notes: "There is no merit in its contention that plaintiffs failed to plead an estoppel.

    [4] In the event of an assignment of rights under a lease contrary to a covenant forbidding such assignment or subletting, such assignment is valid but the lessor alone has the option to forfeit the lease for the breach of covenant. ( Chapman v. Great Western Gypsum Co., 216 Cal. 420 [ 14 P.2d 758, 85 A.L.R. 917]; Buchanan v. Banta, 204 Cal. 73 [ 266 P. 547]; Ruppe v. Utter, 76 Cal.App. 19 [ 243 P. 715].) If the lessor ignores the breach the lease is valid and subsisting as to all other parties. Ibid.