Opinion
53057.
ARGUED NOVEMBER 2, 1976.
DECIDED NOVEMBER 12, 1976. REHEARING DENIED NOVEMBER 29, 1976.
Action on contract. Fulton Civil Court. Before Judge Wright.
Cofer, Beauchamp Hawes, James H. Rollins, for appellant.
Gary C. Furin, for appellees.
The appellee-lessee in this appeal negotiated a lease of commercial premises with the appellant-lessor's predecessor, the term of the lease to be three years commencing May 20, 1971. On June 14, 1973, the appellee informed the appellant that it was vacating the leased premises due to the lessor's breach of the following "Special Stipulation" in the rental contract: "In the event the Landlord desires to lease space in this building to any other professional employment or personnel placement firm, the Landlord shall first seek the approval of this Tenant, and this Tenant shall have the right [to] approve or disapprove such a similar type tenant within the building."
The appellee's basis for claiming that the lessor had breached this "Special Stipulation" was the following: The lessor had leased premises in the building to another tenant, National Secretarial Services, Inc., which had in turn sublet a portion of its leased premises to a competitor of the appellee. The appellee conceded that the lessor had no knowledge of this sublease but contended that since it had not been afforded the opportunity of approving or disapproving this sublease the appellee-lessor was in breach of the rental agreement; the appellee, as a consequence, abandoned the lease.
The appellant refused to accept the abandonment and chose rather to relet them. An action was subsequently brought to recover from the appellee the full amount of rent for the period of vacancy and the difference between the amount received upon reletting and that agreed upon as rent between the appellant and appellee under the abandoned lease. The trial judge heard the case without a jury and concluded that the lessor had violated the "stipulation" compelling the appellee "to move... because of loss of business." Judgment was rendered for the appellee-lessee.
ARGUED NOVEMBER 2, 1976 — DECIDED NOVEMBER 12, 1976 — REHEARING DENIED NOVEMBER 29, 1976.
We deal here with a usufruct, whereby the appellee-lessee received only the right to possess the leased premises in return for its covenant to pay rent. Code § 61-101. The appellee urges that the evidence compels a finding that it was constructively evicted from possession and has a defense therefore to the action for rent. We disagree.
Assuming without deciding that the "stipulation" is a covenant by the lessor not to rent to a competitor of the appellee, we must strictly construe it. Guerin v. Webster, 233 Ga. 521 ( 212 S.E.2d 352); Village Enterprises v. Ga. R. Bank c. Co., 117 Ga. App. 773 ( 161 S.E.2d 901); American Service Co. v. Berry, 108 Ga. App. 413 ( 133 S.E.2d 433). Construing it strictly, it is the lessor who covenants not to lease to a competitor without the appellee's prior approval; there is no covenant that the lessor will restrain its other tenants from subletting to those in such competition. To constitute an eviction which will operate as a suspension of rent, there must be either an actual expulsion of the tenant or some act of permanent character by the landlord with the intention of depriving the tenant of the enjoyment of the premises. Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648 ( 74 S.E. 279). Acts of another tenant, as here, by subletting to a competitor of the appellee, cannot amount to a constructive eviction. Eley v. L. L. Mfg. Co., 30 Ga. App. 595 ( 118 S.E. 583).
Judgment reversed. Webb and Smith, JJ., concur.