Rains Investment Company, Inc. v. George Roe & Associates, Inc.

140 Ga. App. 566 (1976)

231 S.E.2d 460

RAINS INVESTMENT COMPANY, INC. v. GEORGE ROE & ASSOCIATES, INC. et al.

53057.

Court of Appeals of Georgia.

Argued November 2, 1976.

Decided November 12, 1976.

Rehearing Denied November 29, 1976.

*567 Cofer, Beauchamp & Hawes, James H. Rollins, for appellant.

Gary C. Furin, for appellees.

DEEN, Presiding Judge.

We deal here with a usufruct, whereby the appellee-lessee received only the right to possess the leased premises in return for its covenant to pay rent. Code § 61-101. The appellee urges that the evidence compels a finding that it was constructively evicted from possession and has a defense therefore to the action for rent. We disagree.

Assuming without deciding that the "stipulation" is a covenant by the lessor not to rent to a competitor of the appellee, we must strictly construe it. Guerin v. Webster, 233 Ga. 521 (212 SE2d 352); Village Enterprises v. Ga. R. Bank &c. Co., 117 Ga. App. 773 (161 SE2d 901); American Service Co. v. Berry, 108 Ga. App. 413 (133 SE2d 433). Construing it strictly, it is the lessor who covenants not to lease to a competitor without the appellee's prior approval; there is no covenant that the lessor will restrain its other tenants from subletting to those in such competition. To constitute an eviction which will operate as a suspension of rent, there must be either an actual expulsion of the tenant or some act of permanent character by the landlord with the intention of depriving the tenant of the enjoyment of the premises. Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648 (74 SE 279). Acts of another tenant, as here, by subletting to a competitor of the appellee, cannot amount to a constructive eviction. Eley v. L. & L. Mfg. Co., 30 Ga. *568 App. 595 (118 SE 583).

Judgment reversed. Webb and Smith, JJ., concur.