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Thorne building eviction disputed

MILLBROOK — Lawyers representing both sides in the dispute over the lease on the Thorne Building on Franklin Avenue appeared in town court on Thursday morning, March 17, to argue before Justice Bruce Aubin. Allan Rappleyea represented tenants Michael and Erica Downing, and Rebecca Valk, the village attorney, presented the village’s case. Before starting in the courtroom, Aubin took both lawyers outside to try to settle the matter quickly. No success.The dispute is about whether or not the village can terminate the Downings’ original 10-year lease signed in 2009 because the Downings lack the financial backing to proceed with renovations to the Thorne Building, which is owned by the village of Millbrook. In March 2010, after the village failed to perform the promised basic renovations under the lease, the Downings suggested signing a new lease that would permit them to get the project for a performing arts center underway. The promised money from investors fell through and an amended lease was never signed between the village and the Downings. The decision of the Village Board to turn the project over to the Downings caused then-Mayor Andrew Cifferi to resign in disagreement in March 2010.Aubin attempted to clarify the facts. The responses were sketchy. He asked who wrote the lease. Jeff Feigelson may have been the author. Rich Olson, attorney for the village at the time, may or may not have reviewed it before it was signed. Village Trustee Thomas Whalen may have had a hand in it. “No one disputes that the lease is a badly written document,” Valk admitted later in the hearing.“Where did the lease mention proof of financial ability as a breach of the lease?” asked Aubin. Valk argued that although financial ability was not specified, case law supports the village’s view that performance should take place in a reasonable period of time. Aubin asked why this language was not included in the lease.The lawyers argued about the “funds.” Did the Downings have to do anything before the village, as landlord, had the “funds” to perform the work the village was obligated to do under the lease?Rappleyea’s argument was straightforward. “It’s clear that if the village funds don’t come in, then the tenant can cancel the lease,” he said. If the tenants want to, they can continue under the lease for its full term of 10 years. Valk said that would mean not collecting rent for 10 years, and Rappleyea noted, “I can’t remember the last time the village received any rent on the building.” He explained that the Downings don’t intend to wait 10 years, but that the village cannot arbitrarily say, “Your time is up.”The judge asked if there was an oral agreement between the parties in September 2010. It appeared that there was only an agreement for the Downings to give a date by which they would prove their financial ability to move forward and sign a new lease. They never did provide a date, and the village apparently did not specify the threat of eviction. Rappleyea explained that the September meeting was not adversarial and that termination did not come up. The Downings had hoped to provide a date. Valk and Rappleyea agreed that the September meeting is irrelevant to the case.Aubin asked why the Downings should comply with the notice provision of the lease if they aren’t in breach of the contract as it’s written. He also pointed out that the village had not provided a 30-day period before proceeding with an eviction notice.Somewhat exacerbated, Aubin asked Rappleyea if he took the position that the Downings had not breached the contract. “What happens?” he asked the two attorneys. “Nothing? Is there anything you want to say?” By Tuesday, April 5, both attorneys are to submit their strongest points in writing to the judge.

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