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UPDATE: Lawyer defends landlord in Macon eatery eviction case | News

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UPDATE: Lawyer defends landlord in Macon eatery eviction case

The lawyer for a landlord involved in a dispute with a Macon restaurant owner over building repairs has released a statement defending his client.

Brent Marshall is the attorney for Dr. Javaid Sayeed, who owns the building at 2396 Ingleside Ave. where Tropical Flava is located.

On Tuesday, 13WMAZ reported on a court dispute between the landlord and restaurant owner James Duncombe.

Duncombe claims that the building has serious repair problems, including mold and a leaky roof, and that Sayeed's property manager has failed to fix them.

He said he stopped paying rent because he's had to spend his own money to make repairs.

Marshall emailed a response to 13WMAZ around 12:30 a.m. Wednesday.

He argues that:

  • The landlord let Duncombe occupy the building rent-free, from December 2011 to April 2012, and paid him $12,500 for repairs. Later, about a third of that money was applied to Duncombe's rent.
  • Duncombe did not notify the landlord about any maintenance problems at the building until April 2013, 16 months after taking over the buildling.
  • At that point, Marshall writes, Duncombe was already three months behind on rent.
  • Sayeed, the landlord, believes that Duncombe is contractually responsible for the cost of repairs.
  • But, Marshall writes, Duncombe is responsible for paying his rent, regardless of whether the landlord is making those repairs.

"Bottom line," Marshall writes, "a tenant may not withhold payment of rent as Mr. Duncombe has."

The landford has filed a complaint aimed at evicting Duncombe; he has filed a counter complaint. The two cases are pending in Bibb County Superior Court.

On Tuesday, by email, Marshall wrote that the two sides were negotiating to settle the case.

Here is Marshall's statement:

August 26, 2014

"As an active suit is pending in the Superior Court of Bibb County regarding this matter, taking into account ethical considerations and potential legal ramifications, we have asked Mr. Duncombe's counsel to request that he refrain from discussing the matter with the media until the lawsuit is resolved. We have also raised these objections to 13 WMAZ. However, despite these objections, the matter is being reported. As a result, in order to rebut the claims of Mr. Duncombe, I provide the following statement on behalf of my client:

"On December 8, 2011, Mr. Duncombe entered a commercial lease for the premises located at 2396 Ingleside Avenue. My client, Dr. Javaid Sayeed, is the owner of the subject premises which is managed by Fickling Management Services, LLC.

"Mr. Duncombe took possession of the premises on December 8, 2011. For nearly 5 months (December 8, 2011 through April 31, 2012), my client allowed Mr. Duncombe to occupy the premises, rent free, in order to conduct repairs and improvements. In addition, my client agreed to pay Mr. Duncombe $12,500.00 as an allowance for the expense of the repairs and improvements. The lease contract term, wherein Mr. Duncombe was required to pay monthly rent, officially commenced on May 1, 2012 and expired on April 30, 2014. Mr. Duncombe currently occupies the premises on a month to month basis as a tenant holding over. He was free to vacate the premises at the expiration of the lease on April 30th, but has voluntarily elected to stay, despite his current complaints.

"For the first 8 months of the rental term, (May, 2012 - December, 2012), Mr. Duncombe only made two required monthly rental installments, resulting in a $8,000.00 rent arrearage. On January 14, 2013, the parties agreed that the final $4,500.00 of the $12,500.00 improvement allowance would be applied to the past due rent balance. After this offset, Mr. Duncombe was still over two months behind on his rental obligation. Not until March 2013, 16 months after taking possession of the premises, did Mr. Duncombe provide any notice to my client regarding any alleged maintenance issues with the premises. At that time, Mr. Duncombe owed over three months of back rent. As such, it would be patently incorrect to infer that Mr. Duncombe paid his rent timely and in-full or that he fulfilled his obligations under the lease at all times prior to his experiencing the alleged maintenance issues. Currently, Mr. Duncombe owes over twelve months of past-due rent, totaling $15,800.00.

"Under Georgia law, a tenant has an implied duty to pay his rental obligation. This is known as tenant's covenant to pay rent. Likewise, often, a landlord is under a duty to repair and maintain the premises. This is known as landlord's covenant to repair. Importantly, in a commercial lease, as here, landlord's duty, or covenant to repair, can be contractually waived or specifically allocated amongst the parties to the lease. In a commercial setting, it is implied that the parties each possess sufficient business acumen and are thus, free to contract in any manner agreeable to both parties.

"It is Landlord's belief that Mr. Duncombe is contractually responsible for the costs of repairing the defects complained of; that Landlord is not legally responsible for the damages he claims to have incurred; and that by virtue of Mr. Duncombe's own acts, he has waived any claim against Landlord for damages associated with the alleged repair issues. Further, Mr. Duncombe was free to vacate the premises at the end of the lease with no further obligation. However, he has elected to remain. As a result of Mr. Duncombe's failure to take action to remedy his situation; by conducting the repairs, vacating the premises, or otherwise; he has violated his legal duty to mitigate his damages.

"Notwithstanding the above, Georgia law expressly provides that the landlord's covenant to repair & the tenant's covenant to pay rent are independent covenants. Thus, a landlord's breach of its duty to repair does not authorize the tenant to breach his/her duty to pay rent. Bottom line, a tenant may not withhold payment of rent as Mr. Duncombe has in this case.

"As Mr. Duncombe remains in possession of the premises without paying rent, my client is legally justified in filing a dispossessory action against him seeking possession of the premises as well as over twelve months of past-due rent."


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