Commercial lease. Defective eviction notice means “wrongful eviction” and forfeiture of right to rent or liquidated damages.

Vermont Small Business Development Corp. v. Fifth Son Corp., 2013 VT 7 (Dooley, J.)
Landlord appeals a partial summary judgment order concluding that his eviction of tenant from a property was wrongful, as well as the trial court’s ruling on a post-trial motion that tenant was not liable to landlord for rent that accrued post-eviction. Because landlord’s notice of default was defective, and because a wrongful eviction releases a tenant from liability for rent accrued post-eviction, we affirm.

Our law is clear on the necessity of strict compliance with terms in a lease in order to effectuate an eviction: The time, mode and manner of notice of termination must conform to the agreement. With respect residential leases, we require “punctilious compliance with all statutory eviction procedures, including notice provisions. There is no reason to require less “punctilious compliance” with terms of a lease providing for notice in the nonresidential context.

The notice of default was defective in two ways. First, although the terms of the restaurant lease clearly require lessor to “specify[] the occurrence giving rise to [the] Event of Default,” it failed to do so. Second, although the restaurant lease provides that the notice must “stat[e] that this Agreement and terms hereby demised shall expire and terminate on the date specified in such notice,” lessor did not specify any such date. (Emphasis added.) The lease states that the date of termination must be “at least twenty (20) days after the giving of such notice.” (Emphasis added.) We cannot read that language as setting the date of termination at twenty days after the date of the notice.

Because the notice of termination of the restaurant lease was defective, we affirm the trial court’s finding on summary judgment that lessor’s eviction of lessee from the restaurant was wrongful.

Because lessor did not properly terminate the tenancy, we uphold the trial court decision that lessor cannot collect post-eviction rent, whether labeled as such or as liquidated damages.

SCOVT NOTE: In Panagiotidis v  Galanis, 2015 VT 134 the Court refused to extend the requirement of punctiolous compliance to the manner of notice, as opposed to the contents, where the manner of notice given is actually more certain.

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