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Urban Investment & Dev. Co. v. Rothschild & Co.

JANUARY 10, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DOWNING, Judge, presiding.


This appeal is from a judgment entered in two consolidated suits for possession of land filed by the landlords of a tenant to whom they were renting stores in two shopping centers. Notices terminating the tenancies were served on the ground that the tenant's parent corporation had filed bankruptcy proceedings, an occurrence which the landlords claimed was a default that entitled them to demand surrender of the rented premises. The issue presented is whether the landlords had the right to terminate the leases and thus were entitled to possession of the stores. The facts giving rise to this issue are undisputed.

For many years prior to November 4, 1971, Maurice L. Rothschild & Co. was a wholly owned corporate subsidiary of Botany Industries, Inc. Botany was incorporated in Delaware; Rothschild in Illinois. On October 31, 1971, Rothschild executed an "Assignment and Assumption" agreement with Botany which recited that, subject to its right to continue occupying the leased premises, Rothschild "does hereby assign to [Botany] all of its right, title and interest as lessee * * *" in eight leases. In one of these, Rothschild was renting a store in the River Oaks Shopping Center, Calumet City, Illinois, from Draper and Kramer, Incorporated. In another, Rothschild was renting a store in the Old Orchard Shopping Center, Skokie, Illinois, from Urban Investment and Development Co.'s predecessor corporation. The River Oaks lease was to July 31, 1981; the Old Orchard lease, to July 31, 1977. Each lease was nearly identical in form with the other; at Rothschild's election, they could be assigned to its parent corporation; and each contained an article which provided in part that "* * * if any proceedings shall be commenced to declare Tenant bankrupt or insolvent * * * then Landlord may treat the occurrence "* * * as a breach of this lease * * *."

On the day the "Assignment and Assumption" was executed, Rothschild and Botany entered into another agreement by which the two stores were "subleased" to Rothschild for a period to end on the same dates that the two leases expired. In this agreement, Botany was denominated the "assignee of and tenant" of the premises with power to terminate in the event it received "a bona fide offer to purchase its position as an assignee-tenant * * *" under the leases. Rothschild had the right of first refusal and was guaranteed a release from all liability if terminations should become effective. By the terms of the latter agreement, Rothschild remained bound to the terms of the two leases; it could look only to the landlords for service; and instead of the amounts called for in each lease, it was to pay Botany as rent a sum equal to 5% of its gross sales in each store, payable monthly. Then, on November 4, 1971, Botany sold all the capital stock of Rothschild to Clarence Permut, subject to the agreements of October 31.

On April 25, 1972, in the United States District Court for the Eastern District of Pennsylvania, Botany filed proceedings for reorganization under chapter XI of the bankruptcy act. Approximately 2 weeks later, the landlords, Draper and Kramer, Incorporated, and Urban Investment and Development Co.'s predecessor, served notices that, as provided in the bankruptcy provisions in each lease, they were electing to terminate and take possession of the two stores, claiming that the filing of bankruptcy proceedings by Botany was a default under the leases. Accordingly, they demanded that Rothschild surrender the leased premises. Rothschild refused to do so. Thereupon the landlords filed separate suits for possession. Each complaint alleged execution of the leases, the later execution of the "Assignment and Assumption" and "Sublease" agreements between Rothschild and Botany, payment of rent by Botany after the agreements, *fn1 the provision concerning bankruptcy and the filing of bankruptcy reorganization proceedings by Botany. Each complaint alleged that the filing was a violation of the leases and prayed for issuance of a writ of restitution.

Rothschild appeared, answered the complaints and admitted having executed the "Assignment and Assumption" and "Sublease" agreements with Botany; it affirmatively alleged that under the leases and after the agreements, it continued to be the tenant; that all the rents had been paid; that Botany did not, at any time, become a tenant of the leased premises; that Botany had filed for reorganization under the Federal bankruptcy act but this fact did not change Rothschild's status as tenant of the stores because Rothschild was not involved in any bankruptcy proceeding; and that Rothschild was prepared to continue performing all the obligations it had undertaken under the terms of the two leases. Then, the parties proceeded with discovery and with motions for summary relief. *fn2 In the interim, on November 30, 1972, without Rothschild being a party, Botany, in the bankruptcy case, entered into a surrender agreement whereby it agreed to termination of the leases.

A short time later, the trial court entered an order consolidating the two suits filed in the circuit court of Cook County. Following this entry, the trial court, having heard the parties, found that Rothschild had executed an "Assignment and Assumption" agreement with Botany, as assignee; that by the terms of the leases, Rothschild, not Botany, was the tenant; that Botany had filed for reorganization under chapter XI of the bankruptcy act but Rothschild was not involved in any bankruptcy proceeding; that the provisions in the leases concerning the occurrence of bankruptcy had not become operative; and that with regard to the payment of rent, its noncollection by the landlords was the result of the strategy by which they refused an open-court tender of payment by Rothschild. The trial court concluded that the notices of termination were invalid and that the landlords were not entitled to possession. It is this ruling that gives rise to the issue presented for our review. To resolve the issue, we must first determine the effect of the "Assignment and Assumption" and "Sublease" agreements between Rothschild and Botany and then decide who was the tenant of the two stores on April 25, 1972, when Botany filed the bankruptcy reorganization proceedings.


Throughout this litigation, Rothschild has contended that the "Assignment and Assumption" and "Sublease" agreements it entered into with Botany did not affect its status as the tenant under the leases in question. The landlords, on the other hand, contend that the agreements, together with the sale of Rothschild to Permut, were intended by the parties to make Botany the tenant of the stores as the assignee of the two leases. No findings of fact or conclusions of law concerning these agreements were made or reached by the trial court. It is our opinion, however, that the court construed them sub silentio when it ruled in favor of Rothschild. The essential question in that construction was whether the leases were assigned to Botany.

• 1, 2 A lease is a contract for exclusive possession of lands, tenements or hereditaments for life, for a term of years, or at will, or for any interest less than that of the lessor, usually for a specified rent or compensation. (Illinois Central R.R. Co. v. Michigan Central R.R. Co., 18 Ill. App.2d 462, 477, 152 N.E.2d 627.) A lease possesses the property of passing an estate in land; it partakes of the nature of an estate, and exclusive possession of the leased premises is essential to its character. (Holladay v. Chicago Arc Light & Power Co., 55 Ill. App. 463, 467; compare Alwood v. Ruckman, 21 Ill. 200; R.J. Gunning Co. v. Cusack, 50 Ill. App. 290.) In this case, it is not disputed that on the day of the transaction between the two corporations, Rothschild was in possession of two stores as the tenant for a term of years under written leases.

• 3 Whether a transaction is the assignment of a lease depends on its nature, the language employed, and all the circumstances of the case. (Lemons v. Knox (1951), 72 Ariz. 177, 232 P.2d 383; Dodson v. McElreath (1950), 210 Miss. 160, 48 So.2d 861; Branmar Theater Co. v. Branmar, Inc. (Del. Ch. 1970), 264 A.2d 526; 51C C.J.S. Landlord & Tenant § 37(1)a (1968).) And generally, whether the assignment of a lease has actually occurred is a question of law. (Compare Berry v. Blackard Construction Co., 13 Ill. App.3d 768, 300 N.E.2d 627; see Gow v. Buckminster Hotel, Inc. (1958), 336 Mass. 606, 146 N.E.2d 928.) The "Assignment and Assumption" agreement contained words that expressed the concept of assignment and labeled Rothschild the "assigner" and Botany the "assignee." However, it is well-established that the legal effect to be given an instrument is not determined by the label it bears or the technical terms it contains. Bonde v. Weber, 6 Ill.2d 365, 377, 128 N.E.2d 883; compare Chicago Housing Authority v. United States Fidelity & Guaranty Co., 49 Ill. App.2d 407, 199 N.E.2d 217.

• 4 Therefore, in construing the "Assignment and Assumption" agreement, we are bound by the rule that an assignment of a lease occurs where the lessee transfers the entire unexpired remainder of the term created by his lease. For example, where he assigns his whole estate without reserving to himself a reversionary property interest, a privity of estate is at once created between his transferee and the original lessor, and in such a case, the transfer is an assignment. (Sexton v. Chicago Storage Co., 129 Ill. 318, 326, 21 N.E. 920.) But if he reserves or retains any reversion in the leased premises, however small, the privity of estate between his transferee and the original landlord is not established; and in such a case there is no assignment. (Kratovil, Real Estate Law 337 (5th ed. 1969); 1 Rasch, Landlord & Tenant § 35 (1950); 1 Tiffany, The Law of Real Property § 123 (3d ed. 1939); 1 Tiffany, The Law of Landlord & Tenant § 151 (1910).) It clearly appears in this case that Rothschild, by the terms of the "Assignment and Assumption" agreement, retained interests in the two leases sufficient to preclude any notion that it had assigned its tenancy. It expressly reserved the right to use and occupy the leased premises for the balance of the terms. For these reasons, we conclude that the agreement was not an assignment of the leases. *fn3 The "Sublease" from Botany did nothing more than confirm the reversions, although a different rent was to be paid. (See Taylor v. Marshall, 255 Ill. 545, 99 N.E. 638.) As a result, at the conclusion of the agreements of October 31, 1971, Rothschild continued in possession of the lands described in the leases.


• 5-7 In the broadest sense, one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will or otherwise, is a tenant. (Hosford v. Ballard (1868), 39 N.Y. 147, 151; Caldwell v. Thiessen (1939), 60 Idaho 515, 92 P.2d 1047.) Therefore, a tenant is anyone who lawfully occupies or has temporary possession of land whose title is in another. (Insurance Co. v. O'Connell, 34 Ill. App. 357, 361; I.L.P. Landlord and Tenant § 2 (1956).) He is one who has the temporary use and occupancy of real property owned by another person, called the landlord, with the relation, duration and terms ...

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