OK to Evict Shopping Center Tenant for Creating a Nuisance Without Opportunity to Cure

What Happened: Shopping center tenants complained to the landlord about the “overwhelming unpleasant possibly toxic odors” emanating from their neighboring bar lounge tenant whose patrons were apparently allowed to smoke tobacco and marijuana with impunity. The landlord warned the tenant about violating house rules barring use of the premises for illegal and nuisance activities. A week later, it reentered the space, changed the locks, and removed the tenant’s property. The tenant sued the landlord for not giving it an opportunity to cure the violation, as well as for trespass and conversion (that is, unlawfully taking possession) of its property. The trial court ruled that the landlord had the right to evict without notice and dismissed all of the tenant’s claims. The tenant appealed.

Ruling: The Indiana appeals court upheld the lower court’s ruling.

Reasoning: Locking out a tenant without first giving it an opportunity to cure is normally problematic, especially for a nonmonetary violation. And the lease in this case did require the landlord to provide 30 days’ notice and opportunity to cure before lease termination. However, the landlord argued, and the court agreed, the notice requirement applied only to default of monetary obligations under the lease. The lease also included language allowing for termination “without any demand or notice” for non-monetary violations, including violations of shopping center house rules governing appropriate use of the premises. This language “supports the conclusion that the parties intended that a default for creating or permitting waste or nuisance upon the premises” would be grounds for the landlord to terminate the lease without giving the tenant 30 days to cure. And since the lease termination was lawful, the trespass and conversion claims also failed, the court concluded.     

• O5 Arena Llc v. Weston Prop. Mgmt. Llc, 2022 Ind. App. Unpub. LEXIS 586