Daily Development for Monday, December 5, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
LANDLORD/TENANT; STATUTE OF FRAUDS; PROPERTY DESCRIPTION: Though a handwritten agreement between parties is an enforceable lease and the landlord normally would be estopped from denying its validity, if the lease contains no property description, parol evidence may not be considered in determining whether an agreement satisfies the Statute of Frauds, but the parties' partial performance by paying rent and delivering possession of a specific premises may remove the lease from the Statute of Frauds.
Nacoochee Corp. v. Suwanee Inv. Partners LLC, 2005 WL 2155954 (Ga. App., September 8, 2005).
Landlord and Tenant executed a handwritten, one-page document titled "Lease Deal" which contained only a payment schedule, a brief liquidated damages provision and an indemnification provision. Landlord later sent tenant a formal lease agreement which would have obligated tenant to pay additional fees. Tenant refused to sign the new agreement. Landlord then brought a possessory action where it argued that the "Lease-Deal" was not enforceable because it did not contain a description of the property, and therefore violated the Statute of Frauds. The Trial Court held that the handwritten agreement was an enforceable lease because the parties executed the agreement on the premises and therefore knew that the agreement applied to those premises. The Trial Court also held that the landlord was estopped from voiding it.
The Court of Appeals reversed the Trial Court's decision, holding that the agreement violated the Statute of Frauds because it contained no property description and that it would not consider parol evidence, such as that relating to the location where the lease was signed, in determining whether the agreement satisfied the Statute. In addition, the Court of Appeals held that the Trial Court's consideration of the tenant's affirmative defense of estoppel was error because tenant had not raised this issue in its pleadings or by motion as an affirmative defense.
Notwithstanding the above holding, the court remanded the case to the Trial Court to determine whether the parties' payment and acceptance of rent constituted partial performance under the lease and therefore removed it from the Statute of Frauds. It noted that Georgia courts have refused to consider simply payment of rent and taking of possession as partial performance when a writing lacks a statement of the term, since such behavior is not necessarily consistent with any specific term, and does not prove the alleged lease. But where the missing element is the description of the premises, the court concluded that possession of a specific premises, coupled with paying the specified rent, is normally uniquely consistent with the alleged lease, and can serve as partial performance to take the agreement out of the Statute.
Comment: The editor has always cautioned his students that the “part performance” doctrine requires more than simply paying rent and taking possession. This probably remains true when there is no writing at all, since such acts are not uniquely consistent with any particular lease agreement. But where the lease agreement lacks only the description, and otherwise constitutes a valid written expression of the parties’ intent, the Georgia courts have wisely reached a different conclusion and have noted that simply paying rent and taking possession could satisfy the “part performance” doctrine.
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