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Reminder: An unwarranted notice of breach and intent to terminate can be a breach itself

Street view of Taco del Sol from Google MapsIn the news:

  • The landlord of a commercial property in Bozeman, Montana received complaints about the noise and aromas emanating from a Taco del Sol restaurant operated by a tenant.
  • The landlord, purporting to act under its contractual right to make rea­son­able rules, asked the restaurant to stop playing music; to install felt on its chair legs; and to install a new ventilation system.
  • The restaurant installed felt on the chair legs but declined to stop playing music. The restaurant also bought equipment to reroute its existing ventilation system, but the landlord prevented its installation.
  • The landlord sent the restaurant a notice of breach and of the landlord’s intent to terminate the lease if the tenant did not take all the measures demanded by the landlord within 30 days.
  • Shortly after the 30-day cure period expired, the restaurant sued the landlord for a de­clar­a­tory judgment (1) that its conduct was not a breach, and (2) that the land­lord had anticipatorily breached the lease agreement by sending the notice of default. (The tenant also moved out, possibly to this location.)

The trial court held in favor of the restaurant and awarded damages. This week, the state supreme court affirmed. See Bridger del Sol, Inc. v. VincentView, LLC, 2017 MT 293 (Nov. 28, 2017).

For another “own goal” tale in the same vein, see the Common Draft annotation on termination.

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