Summary Judgment. Summary judgment is proper
when the pleadings and evidence admitted at the hearing
disclose no genuine issue regarding any material fact or the
ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of
Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit
of all reasonable inferences deducible from the evidence.
Contracts: Real Estate: Leases. Neb. Rev.
Stat. § 36-105 (Reissue 2016) requires a signature by
the party to be charged by the writing.
Landlord and Tenant: Assignments. A lessee,
during his occupancy of the demised premises, holds both by
privity of estate and of contract. Assignment of the lease by
the lessee divests him of this privity of estate and
transfers it to his assignee, who thereafter holds in privity
of estate with the lessor.
Landlord and Tenant: Assignments: Breach of
Contract. Privity of contract is not transmitted to
the purchaser of the leasehold by an assignment of the lease
alone; for the express covenants of the lessee contained in
the lease will remain, during the continuance of the terms,
obligatory upon the lessee. These obligations extend to
breaches of covenant which have occurred after the
assignment, and the lessee is not relieved therefrom by the
mere acceptance of rent by the lessor from the person to whom
such assignment has been made.
Landlord and Tenant: Leases. A landlord is
not necessarily entitled to enforce all of the terms of a
lease merely because there is privity of [301 Neb. 280]
estate; rather, such privity only gives the landlord the
right to enforce covenants that run with the land.
Contracts: Real Estate: Words and Phrases.
Generally, the three essential requirements for a covenant of
any type to run with land are (1) the grantor and the grantee
intend that the covenant run with the land, as determined
from the instruments of record; (2) the covenant must
"touch and concern" the land with which it runs;
and (3) the party claiming the benefit of the covenant and
the party who bears the burden of the covenant must be in
privity of estate.
Contracts: Real Estate: Landlord and Tenant:
Liability. The covenant to pay rent runs with the
land, and a party in privity of estate with the landlord is
directly liable to him for the installments accruing while
that relation exists.
Contracts: Real Estate: Liability. Liability
for covenants which run with the land cease with cessation of
Real Estate: Leases. An express assumption
of a real property lease requires specific affirmation by the
assignee to bind itself to the lease obligations.
Estoppel. The doctrine of equitable estoppel
is applied to transactions in which it is found that it would
be unconscionable to permit a person to maintain a position
inconsistent with one in which he or she has acquiesced or of
which he or she has accepted any benefit.
Contracts: Fraud: Estoppel. Only where a
party to a written contract within the statute of frauds
induces another to waive some provision upon which he is
entitled to insist and thereby change his position to his
disadvantage because of that party's inducement will the
inducing party be estopped to claim that such oral
modification is invalid because not in writing.
Contracts: Fraud. Sophisticated business
entities are charged with knowledge of the statute of frauds
and cannot reasonably rely on oral statements or conduct.
from the District Court for Lancaster County: Robert R. Otte,
Randall L. Goyette and Phoebe L. Gydesen, of Baylor. Evnen,
Curtiss, Grimit & Witt, L.L.P, for appellant.
M. Guthery, Haleigh B. Carlson, and Derek A. Aldridge, of
Perry, Guthery, Haase & Gessford, PC, L.L.O., for
Neb. 281] Heavican, C.J., Miller-Lerman, Cassel, Funke,
Papik, and Freudenberg, JJ.
owner of one property seeks to bind a purchaser of another
property to the terms of a 50-year lease agreement entered
into between different parties. Because there is no privity
of contract and the purchaser did not expressly assume the
lease, the statute of frauds bars the owner's claim for
breach of contract. We further conclude that equitable
estoppel does not prevent the purchaser from raising the
statute of frauds as a defense and that there is no genuine
issue of material fact. We affirm.
1978, D. William Smith and Joyce Smith owned a parking lot
located on N Street in Lincoln, Nebraska. Two Twenty
Enterprises, L.L.C. (TTE), owned an office building located
on 17th Street west of the parking lot. The Smiths, as
lessors, entered into a lease agreement with TTE, as lessee,
to lease the parking lot to TTE (parking lot lease). The
original term of the lease was for 50 years.
section of the parking lot lease allowed the lessee to
encumber the leasehold interest by mortgage or other proper
instrument. The lease provided in part:
The execution of any such mortgage or other instrument, or
the foreclosure thereof, or any sale thereunder, . . . shall
not be held as a violation of the terms or conditions hereof,
or as an assumption by the holder of such indebtedness of the
obligations hereof. No such encumbrance, foreclosure,
conveyance, or exercise of right shall relieve LESSEE of its
parking lot lease contained several other sections pertinent
to this appeal. One section authorized assignment of [301
Neb. 282] the lease. A different section set forth a right of
first refusal in the event that either the lessor or the
lessee decided to sell its property or the lessee wished to
transfer its interest in the leasehold. And under a rent
escalation clause, the rent was to be adjusted in the 11th
year and every 5th year thereafter.
24, 2004, TTE entered into a lease with the Nebraska
Department of Administrative Services (DAS) on behalf of a
tenant. TTE agreed to lease space at the office building and
to provide parking stalls in the parking lot for use by the
tenant's clients. The lease was set to end on August 30,
2006, Raasch Enterprises, Inc. (Raasch), purchased the office
building from TTE. The purchase was financed by a loan from
The Cattle National Bank & Trust Co. (the Bank), and
Raasch executed a deed of trust to secure the loan. The deed
of trust, signed only by Raasch, stated that Raasch
"irrevocably assigns, grants and conveys" to the
Bank "all the right, title and interest" in
existing or future leases "for the use and occupancy of
the Property." The deed of trust identified the
"Property" as the office building. The deed of
trust did not contain any ...