GRETCHEN KLAYMAN vs. ROBERT B. LANG and TANYA E. LANG

This cause came on to be heard pursuant to the plaintiff's complaint under G.L. c. 231A for a determination as to the obligation of the plaintiff to lease space in 25-31 Main Street, Nantucket, Massachusetts ("premises"), to one or both of the defendants. The defendant Robert B. Lang has filed a counterclaim against the plaintiff in which he claims a valid lease to the premises and alleges that he has suffered substantial harm as a consequence of being unable to occupy said premises. The defendant Tanya E. Lang has crossclaimed against the defendant, Robert B. Lang, and upon motion this crossclaim has been dismissed without prejudice for lack of subject matter jurisdiction. The defendant Robert B. Lang has moved for sanctions against the defendant Tanya E. Lang for her failure to appear in court on March 11, 1988.

A trial was held on November 16, 1987 and continued on January 11, March 11 and April 14, 1988. A stenographer was sworn to record and transcribe the testimony; five witnesses testified and 16 exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal.

I find the following:

1. The plaintiff and a number of other individuals are the owners of the premises also known as the Hussey Block.

2. In 1983, the owners of the premises entered into a lease with the defendants for office space in a portion thereof.

3. The lease, dated December 12, 1983, was for a one year term beginning March 1, 1984 with an option for the lessee to extend for two additional years. It was to terminate no later than March 31, 1987.

4. The defendants, Robert and Tanya Lang, were married and were engaged in the operation of a real estate brokerage office as a partnership.

5. In 1985, the defendants incorporated and began doing business as Lang Real Estate, Inc. Prior to their divorce action being finalized, the corporation was dissolved so that by January 1, 1987, both defendants were again doing business as a partnership called Lang Real Estate.

6. In September of 1985, Grace Coffin of Coffin Real Estate began to manage the Hussey Block. Her duties involved leasing space in the Hussey Block, depositing rent checks and renewing existing leases. She had the permission and approval of the owners of the Hussey Block to act as their agent, and so acted.

7. On January 25, 1986, Robert B. Lang commenced an action for divorce against Tanya E. Lang.

8. On September 12, 1986, Grace Coffin wrote to both defendants proposing the terms of a new lease to be effective subsequent to March 31, 1987. On September 30, 1986, Grace Coffin again wrote to the defendants correcting the terms of the September 12, 1986 letter.

9. The terms of the renewal in the September 12, 1986 letter from Grace Coffin to Robert and Tanya Lang were as follows:

At the Annual Meeting of the Shareholders of the Hussey Block the following decision were (sic) made;

1) As of April 1, 1987, there will be individual Leases for LANG REAL ESTATE & NANTUCKET SEWING CENTER predicated on a square foot basis.

2) Lang Real Estate Lease will be renewed on April 1, 1987 for a period of nine (9) months providing you adhere to the request made a year ago from the Owners that a KEY to your quarters is left in the office of our Agent. We are in possession of all keys but Lang Real Estate .

3) A Lease will be drawn for (sic) Lang Real Estate, Inc. for the period April 1, 1987 to December 31, 1987 at the rate of $12.00 a square ft. The square foot usage is 661 sf. Rental per month will be $661.00 per.

4) At the expiration of the Lease on December 31, 1987 you willl be given the Option to renew for a period of three (3) years; at a (sic) increase of not more that (sic) 3%.

5) All Leases on the Hussey Block will then be on the same time schedule.

10. The September 30, 1986 letter from Grace Coffin to Robert and Tanya Lang, d/b/a Lang Real Estate, made the following correction in the letter of September 12, 1986:

"4)At the expiration of the Lease on December 31, 1987, you will be given the Option to Renew for a period of three (3) years; with an increase of not more than three (3% ) percent of the annual rent for 1988; the increase(s) for 1989 and 1990, if any, to be voted on at the respective Annual Meetings of the Shareholders of the Valentine Hussey Block held August, 1988 and August, 1989; such Option to Renew said Lease for the three year period to be exercised in writing no later than October 1, 1987".

11. From December 19, 1986 until February 16, 1987, Tanya E. Lang was out of the country and accordingly, not present at the Main Street office.

12. On February 27, 1987, the defendant Robert B. Lang executed a letter dissolving the Lang Real Estate Partnership. He delivered it to the defendant Tanya E. Lang by placing it on her desk at the Hussey Block office. The letter read as follows:

Dear Tanya,

I hereby terminate the Partnership of Lang Real Estate, Effective immediately.

Robert B. Lang

13. On February 27, 1987, the defendant Robert B. Lang called Paula McAuley, an employee of Coffin Real Estate, regarding the lease at the Hussey Block. He asked that the lease be renewed in his name as he would be doing business from then on as Robert B. Lang Real Estate Co. Mr. Lang informed Ms. McAuley that he and Tanya were in the process of a divorce, that they had not worked together for some time and that they would not be working together in the future.

14. On the evening of February 27, 1987, Paula McAuley contacted Grace L. Coffin and informed Ms. Coffin that Mr. Lang wished to change the lease to his own name, d/b/a Robert B. Lang Real Estate Co., and relayed the conversation that she had with Robert Lang.

15. Between February 27 and March 1, 1987, Grace Coffin unconditionally approved the change of the lessee to Robert B. Lang, d/b/a Robert B. Lang Real Estate Co., and instructed Paula McAuley to change the proposed lease accordingly. A lease had already been prepared for Lang Real Estate covering a nine month period from April 1, 1987 through December 31, 1987. This lease was mailed under cover of a letter dated March 1, 1987, signed by Grace L. Coffin, agent for the Valentine Hussey Block.

16. On March 2, 1987, Paula McAuley instructed an employee of Coffin Real Estate to prepare a new lease to be identical to the one mailed March 1, with the only exception that the lessee was to be changed to Robert B. Lang, d/b/a Robert B. Lang Real Estate Co.

17. On March 2, 1987, Paula McAuley telephoned the defendant Robert B. Lang and told him that Grace Coffin had approved the change whereby Robert B. Lang, d/b/a Robert B. Lang Real Estate Co., would be the sole lessee and that the new lease was ready and he could come by the office and pick up the lease.

18. On March 2, 1987, the defendant Robert B. Lang came to the office of Coffin Real Estate, signed the lease and delivered to the bookkeeper a check for the March rent, the April rent and the keys to the leased premises.

19. The checks delivered by Robert B. Lang were deposited to the account of Grace Coffin.

20. On March 2, 1987, Paula McAuley mailed the executed lease to Grace Coffin.

21. On March 2, 1987, Robert B. Lang registered the name of Robert B. Lang Real Estate Co., had stationery printed in the name of Robert B. Lang Real Estate Co. and began to operate as Robert B. Lang Real Estate Co.

22. On March 3, 1987, the Nantucket Division of the Probate and Family Court appointed Theodore Tillotson, Esq. ". . . as Commissioner with full legal authority to wind up the affairs and business of Lang Real Estate formerly a corporation. . . "

23. No income was received relative to Lang Real Estate Company between February 27, 1987 and March 3, 1987.

24. On March 3, 1987 the defendant Tanya E. Lang called Paula McAuley to inquire as to the receipt of the March rent and in that conversation or a later conversation, Tanya Lang was informed that a new lease had been executed in the name of Robert B. Lang, d/b/a Robert B. Lang Real Estate Co.

25. On or about March 10, 1987, the defendant Tanya Long contacted Grace Coffin and informed her that an altercation had occurred between the defendants and she requested that a new lease be prepared in her name alone.

26. On or about March 10, 1987, Grace Coffin telephoned Gretchen Klayman, the named plaintiff in this action, relaying the conversation with Tanya Lang. Gretchen Klayman told Grace Coffin to do nothing and that Gretchen Klayman would contact the other owners of the Hussey Block.

27. Sometime on or after March 10, 1987, Gretchen Klayman contacted Grace Coffin and informed her that all the owners agreed that the lease should be given to no one and instructed Grace Coffin to write to Robert and Tanya Lang and inform them that the owners would not rent to either "in the interest of fairness and justice to Robert and Tanya Lang."

28. On March 11, 1987, Grace Coffin sent a letter to Tanya Lang and a similar letter to Robert Lang, informing them that the Hussey Block ". . . will not be leasing the second floor space at 31 Main Street to you or Bob . . . ."

29. As a result of this action, Robert B. Lang was denied access to the premises.

30. The Commissioner appointed to wind up the affairs of the partnership has paid the bills, received income and made distribution. The Commissioner has taken no action with respect to the lease.

The plaintiff herein seeks a declaration that she need not rent to either defendant and argues that the lease executed by Robert B. Lang is invalid due to the failure of the lessor to sign. G.L. c. 186, §15D provides as follows:

A lessor who has agreed orally to execute a lease and obtains the signature of the lessee shall, within thirty' days thereafter, deliver a copy of said lease to the lessee, duly signed and executed by said lessor. Whoever violates any provision of this section shall be punished by a fine of not more than three hundred dollars. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable.

See Greenstein v. Flatley, 19 Mass. App. Ct. 351 , 355 (1985).

In the case at hand, Robert Lang informed Coffin Real Estate that the partnership of Lang Real Estate had terminated, that he was in the process of getting a divorce and that he wished to renew the lease in his name d/b/a Robert B. Lang Real Estate Co. After receiving an oral commitment from Grace Coffin, Robert Lang acted in reliance thereon by registering his company name, obtaining stationery and operating as Robert B. Lang Real Estate Co. He was informed that a new lease was being prepared in his name, and he came to the offices of Coffin Real Estate, signed the new lease and gave the bookkeeper a check for March rent, April rent and keys to the office. The checks were accepted by Coffin Real Estate and deposited. See Wasserman v. Agnastopoulos, 22 Mass. App. Ct. 672 , 678 (1986).

The plaintiff asserts that neither Grace Coffin nor any of her employees had any authority to offer Robert Lang a lease in his own name. This is clearly not so. I find and rule that Grace Coffin of Coffin Real Estate had apparent and actual authority to negotiate and deal, orally and in writing, with tenants and prospective tenants and to lease units for the owners of the Hussey Block. See Kanavos v. Hancock Bank & Trust Co., 14 Mass. App. Ct. 326 , 331-332 (1982); Restatement (Second) of Agency §§8, 27 and 49 (1957).

Other arguments advanced by the plaintiff address questions of the partnership and fraudulent representations by Robert Lang. The law is settled that in a partnership of indefinite time frame, any partner may by express will lawfully dissolve the partnership at any time. G.L. c. 108A, §31; Johnson v. Kennedy, 350 Mass. 294 (1966).

The letter executed by Robert Lang and placed on Tanya's desk on February 27, 1987 effectively dissolved the partnership doing business as Lang Real Estate Co. Having dissolved the partnership, I find that Robert Lang was entitled to pursue a lease in his own name, and I rule that the representations made to agents of Coffin Real Estate on February 27, 1987 and repeated on March 2, 1987 do not constitute fraud or material misrepresentations such as to rescind the lease.

Finally, the plaintiff asserts the failure of the receiver to request the lease as fatal to Robert Lang's claim to the lease. Clearly, this is outside the scope of the current action. The defendant Tanya E.Lang filed a counterclaim against the defendant Robert B. Lang, which counterclaim was dismissed without prejudice by this Court for lack of subject matter jurisdiction. As the plaintiff concedes, Tanya Lang never requested or had a lease offered to her in her name alone, and in the absence of statutory constraints, a landlord may rent to whomever he or she pleases. See Stavisky, Landlord and Tenant, §111, p. 45.

Accordingly, I find and rule that the lease executed on March 2, 1987 by the defendant Robert B. Lang is valid and enforceable and that the plaintiff's refusal to allow Robert Lang access to the premises was and is wrongful. Thereupon, I find the terms of the lease to be as follows:

1. The lease signed by the defendant Robert B. Lang on March 2, 1987 shall commence October 1, 1988 and shall run to December 31, 1988 at which time the defendant Robert B. Lang shall have, in accordance with the terms of the lease, an option to renew the lease for a three year term. The Option to Renew said lease for the three year period shall be exercised in writing no later than December 1, 1988.

2. The rent shall commence at the rate agreed upon and shall accrue as set forth in the letter of September 12, 1986 with the first year's increase (being the year 1989) not to exceed three percent of the annual rent for 1988 and the increases for 1990 and 1991, if any, to be voted on at the respective Annual Meetings of the Shareholders of the Valentine Hussey Block. Such increase for the years 1990 and 1991 shall not exceed a reasonable amount.

The defendant Robert B. Lang has motioned for sanctions against the defendant Tanya E. Lang for her failure to appear in court on March 11, 1988. Representations were made by counsel for the defendant Tanya E. Lang at the January 11, 1988 hearing that she would be present at the next date, March 11, 1988. Tanya Lang's counsel after conferring with the plaintiff's counsel made a decision not to produce Tanya Lang at the March 11, 1988 hearing, and did not produce her nor make any reasonable effort to do so. Moreover, he failed to inform Robert B. Lang's counsel of such decision after having stipulated in Court on January 11, 1988 that Tanya E. Lang would be present when the hearing reconvened. As a result of such disregard of professional courtesy, the defendant Robert B. Lang by his counsel has submitted a motion for sanctions of $1,320 representing trial preparation, travel to and from Nantucket and hotel accommodations for the evening of March 10, 1988. Sanctions in the amount of $1,500 are awarded hereunder to be paid by counsel for the defendant Tanya E. Lang.

The parties have all requested various findings of fact and rulings of law. I have not attempted to rule on each of said requests since I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.