Supreme
Court of
116
N.J.L. 586, 186 A. 29.
Johnson,
pp. 313-315
Facts: The defendant leased a
storefront to the plaintiff. However, on
the day the plaintiff was supposed to take possession, the previous tenant was
still wrongfully occupying the storefront and didn’t leave until about three
weeks later after the landlord went to court to have the old tenant removed. The plaintiff sued for breach of the duty to
put him in possession on the first day of the lease based on theories of both an
express duty and an implied covenant.
The trial court found for the plaintiff, and the defendant moved for a
nonsuit and a directed verdict.
Issue: Did the lease contract
impose a duty on the lessor to put the lessee in possession of the storefront on
the first day of the lease term?
Rule: When the term of a lease is
set to begin at some point in the future, the lessor has a implied duty to make
sure the premises are available for the new tenant’s immediate legal and actual possession on the first day
of the lease.
Analysis: The basic idea is when
parties bargain over the lease, they’re not merely bargaining for the right to
sue to eject someone who is there wrongfully, but to actually be able to move in.
I think this might be a good Coase Theorem problem, because it’s
probably a little cheaper to bargain just for the right to sue than for the
right to actually possess. The cost of
ejecting the previous tenant (or maybe eventually ejecting the lessee) is
probably built into the cost of the lease if that responsibility rests on the landlord.
Conclusion: The defendant’s motions are
denied and the verdict is upheld.