Charles and Gemma McCuen v. Patricia Martin

This came before the court for trial on June 6, 2003. Attorney Andrew Ruzicho appeared for Plaintiff, Charles and Gemma McCuen; Attorney Dennis Pergram appeared for Defendant, Patricia Martin.

Plaintiffs rented a home from Defendant pursuant to written lease agreement. At the expiration of the written lease period, Plaintiffs held over on an agreed month to month basis. After Plaintiffs vacated the home, Defendant withheld their $800 security deposit and sent them detailed statement of charges against the deposit.

Defendant is an experienced real estate agent who buys and sells real estate on her own accord as well from time to time. Defendant wished to sell the home in question to Plaintiffs. Credit problems prevented Plaintiffs from financing the purchase, so Defendant negotiated a lease agreement with favorable terms (including free water and sewer) with the expectation that Plaintiffs would soon succeed in obtaining the financing required to purchase the home.

During the lease period, a plumbing problem damaged the kitchen floor and Defendant agreed to install a premium floor as further inducement to promote ultimate sale of the home to Plaintiffs. Defendant prepared the lease agreement and related documents herself.

At no time did the parties enter a written agreement for sale of the home, or include any such agreement in the written lease agreement. Instead, Defendant prepared an "addendum to lease" in which she included a provision that she "would consider an offer to purchase on a 'rent with option to buy basis.'" This agreement to "consider and offer falls well short of an enforceable agreement to buy.

Not only did Plaintiffs not extend an offer to buy, but toward the end of the one year lease term, they advised Defendant that they did not wish to purchase the home at all. This turn of events chagrined Defendant. She prepared a fill in the blank, preprinted "month to month" rent agreement that the parties executed which, more or less, simply continued the terms of the expired one year lease on a month to month basis. This agreement made no reference to Plaintiffs paying their water and sewer bills.

Plaintiffs submitted into to evidence a copy of the one page, month to month rental agreement which bore no indication of an attachment. Defendant offered into evidence a copy of the month to month agreement with a second page appended. In the top margin of Defendant's copy of the month to month agreement is hand inscribed "pg 1 of 2." In the top margin of the attachment is the notation "Attached to Month to Month."

The notation "pg 1 of 2" is not found on Plaintiffs' copy of the month to month agreement. It seems then, that this language was not on the original until after it was signed by Plaintiffs. Possibly, this notation is only found on Defendant's copy of the original, and not on the original at all. The court finds from the evidence that alleged attachment was not part of the month to month agreement, but a separate agreement, undated which was related but independent of the month to month agreement.

The alleged attachment is titled "agreement to vacate." It is undated and signed only by Mr. McCuen, not by Mrs. McCuen. It purports to raise the monthly rent by $10. This agreement purports to require the tenant-plaintiffs to vacate the home within 30 days of notice. In addition, it contains the following language:

As of this date, tenants have paid rent through the following date:___________

They owe owners a total of $______________ itemized as follows: water and sewer pd. by tenant

Defendant testified that she intended by this "agreement" to require Plaintiffs to pay their own water and sewer bills during the period of their month to month tenancy. She no longer wished to pay these utilities if Plaintiffs' were unwilling to buy the home.

The "agreement to vacate" is undated; the "month to month" agreement is dated "Sept. 30." The former raises the rent and contains the confusing language regarding sewer and water, the former extends the lower rent and free water and sewer found in the original one year lease. If the parties signed the "agreement to vacate later, its terms would prevail (at least as to Mr. McCuen). If the parties signed the "month to month" agreement later, then its terms, and thereby the original one year lease terms, would prevail.

The evidence did not establish Defendant's claim that the Agreement to vacate was signed at the same time as Month to Month agreement. Further, no evidence suggested that it was signed later. The court cannot conclude from the evidence that the terms of the "agreement to vacate" prevail over the terms of the month to month agreement.

Even if the Agreement to Vacate prevailed, the court finds that the language therein would not obligate Plaintiffs to pay their own water and sewer bills thereafter. The reference to said utilities is a nonsequitur, at best. The statement the tenants "owe owners a total of $_____, itemized as follows: water and sewer pd by tenant," simply does not make sense. The use of the present tense verb "owe" is not consistent with the use of the past tense form of the verb "pd." (This presumes that "pd." is an abbreviation for paid.). The statement seems to provide that the tenants owe utilities that they already paid. Absent from the statement is any form of the verb "to pay" that refers to a duty by the tenants to do anything in the future.

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