[WSBAPT] Question about action for the rents and profits or for the use and occupation of real estate

[Candace Wilkerson]

Hello listmates:

I have been trying to analyze the following factual situation to determine whether it would fall within an action for the rents and profits or for the use and occupation of real estate (with a 6-year SOL):

Commercial tenant signs a lease agreement and moves in before the lease commencement date, and before landlord provides tenant with the certificate of occupancy required to begin the lease period.  Landlord does not have a chance to provide the certificate of occupancy before tenant decides to rescind the lease.

During the period Tenant has used the property, tenant has brought in subtenants without landlord's consent (and has collected and kept rent from these subtenants), and has made tenant improvements without landlord's consent that were not properly permitted by the county.  Tenant moves out, leaving landlord to evict subtenants who can't be on the property because they aren't commercial tenants, and to spend thousands in correcting tenant improvements to avoid county permitting violations.  Landlord wants to sue tenant for the damage to the building caused by unpermitted tenant improvements, legal fees of eviction, collected rents from subtenants that tenant did not turn over to landlord.

Because the certificate of occupancy was never obtained (tenant moved out too soon), I am dubious that breach of contract will work.  The statute of limitations for most other actions has already run.  Therefore, I would like to consider recommending action for rents and profits/use and occupation as an alternative cause of action.

Your thoughts would be much appreciated!

Thanks,
Candace Wilkerson

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