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01/06/76 CITY MUSKEGON v. LIPMAN INVESTMENT

January 6, 1976

CITY OF MUSKEGON
v.
LIPMAN INVESTMENT CORPORATION



Appeal from Muskegon, John H. Piercey, J.

Leave to appeal applied for.

N. J. Kaufman, P. J., and R. B. Burns and G. R. Deneweth,* JJ.

SYLLABUS BY THE COURT

1. Landlord and Tenant -- Construction of Lease -- Intention of Parties.

When a lease is unambiguous in its terms, what the parties intended by the language employed in the lease is a matter of law for the court's determination and not a question for the consideration of the fact finder.

2. Landlord and Tenant -- Eminent Domain -- Condemnation -- Lessee -- Right to Share in Award.

The use of a clause in a lease to deny a lessee the right to share in a condemnation award is commonplace.

3. Appeal and Error -- Findings of Fact -- Clear Error.

A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous.

4. Landlord and Tenant -- Eminent Domain -- Condemnation of Premises -- Construction of Lease -- Right to Condemnation Award -- Right to Assert Claims -- Liability for Rent.

In a dispute over the construction of a lease provision concerning the parties' rights after condemnation of the leased premises, held: (1) the lessee waived his right to participate in the condemnation award, (2) the lessee may assert against the condemning authority a claim for losses which are separate from the loss of the value of the leasehold, such as losses from removing trade fixtures or losses from interruption of business, and (3) the lessee's liability for rent ceased on the date that possession of the premises was surrendered, not on the date that title passed to the condemning authority.

The opinion of the court was delivered by: Deneweth

Petition for condemnation of property by the City of Muskegon against Lipman Investment Corporation, lessor of the property, and Hosler's, Inc., lessee of the property. Petition granted. Lipman moved for summary judgment against Hosler's on three issues: Hosler's right to share in the condemnation award, the classification of certain improvements on the premises, and Hosler's liability for rent. Judgment for Lipman granted on one issue, denied on two issues. Hosler's appeals. Lipman cross-appeals.

On February 2, 1973, plaintiff City of Muskegon commenced condemnation proceedings against certain improved real estate. Defendant Lipman Investment Corporation, lessor of the premises, and defendant Hosler's, Inc., the lessee, both waived necessity and the usual notice period. On February 5, 1973, the Muskegon County Circuit Court held a hearing on the city's petition. The court ordered payment of $200,000 to defendant Lipman and $29,012 to defendant Hosler's, and deferred the city's right to possession until June 1, 1973. On June 21, 1973, Lipman moved for a partial summary judgment against Hosler's on three issues. The first issue, whether Hosler's had waived its right to claim the value of its leasehold, was decided in favor of Lipman. The other two issues, involving the classification of certain improvements ...


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