THE LEASING HOTLINE

Breach of a lease occurs upon failure to perform an absolute duty and the defense of anticipatory repudiation cannot be used.

The landlord sued the tenant alleging default under a commercial lease for failure to pay rent, utility expenses and the cost of renovations to the subject property that were the responsibility of the tenant under the parties' lease. The lease provided that if the tenant was in default of any term of the lease, the landlord could terminate the lease 14 days after written notice of termination to the tenant. After two separate written notices to the tenant advising the tenant of its defaults and including a written warning that the locks would be changed, the landlord proceeded with the termination of the lease ' 15 days after the first written notice to the tenant. The tenant alleged that the landlord had committed anticipatory repudiation of the lease by changing the locks on the premises. The trial court held that the tenant was indebted to the landlord for his failure to pay his debts under the terms of the lease. The appellate court affirmed, stating that the tenant was in breach of the lease by his failure to perform duties that had become absolute under the lease. The tenant's defense of anticipatory breach by the landlord failed because the tenant was already in default of his absolute duties under the lease at the time he claimed there was an anticipatory breach by the landlord.