Christopher L. Kaempfer, Thomas D. Amick and Kathleen M. Drakulich were featured in the “Eye on Alumni” online publication by the University of the Pacific McGeorge School of Law for being named Best Lawyers in America.
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By Stephanie Allen
Published in the August 2008 edition of The Nevada Lawyer
"As lawyers, it is our professional responsibility to serve the public through pro bono work and through legal organizations or associations such as the State Bar of Nevada."
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By Jim Smyth
Published in the August 2008 edition of Communiqué, the official publication of the Clark County Bar Association
One of the enjoyable parts of representing commercial landlords is that the eviction remedies available in NRS 40.253 and 40.300 actually work to quickly achieve the results that are desired by landlords. That is not the case in too many other areas of civil litigation. Unfortunately, however, the landlord-tenant provisions of NRS Chapter 40 contain somewhat archaic terminology that can be confusing. That confusion can lead to procedural defenses that slow down the eviction process and lead to frustrated and disappointed clients. The purpose of this article is to clarify some of the commonly confused commercial landlord-tenant issues. (Residential landlord-tenant issues are mainly covered in NRS Chapter 118A and will not be discussed in this article).
The relationship between the lease and chapter 40 remedies
The terms of the lease govern and control the rights and remedies of a landlord and tenant. See Anvui, LLC v. G.L. Dragon, LLC, 123 Nev. 25, 163 P.3d 405 (2007)(holding ambiguity in underlying lease terms created legal defense to summary eviction). The only time the provisions of NRS Chapter 40 come into play is when a landlord desires to evict a tenant. In those cases, a landlord must utilize and follow the procedures in NRS Chapter 40. See Gasser v. Jet Craft, Ltd., 87 Nev. 376, 487 P.2d 346 (1971)(service of proper notice is jurisdictional requirement for eviction for failure to pay rent under NRS Chapter 40). It is not improper for a landlord to first send the notice required under the default provisions of the lease prior to serving the NRS Chapter 40 notices that are required to start the eviction process. Lorenz v. Beltio, Ltd., 114 Nev. 795, 963 P.2d 488 (1998)(note also that NRS 40.252 prohibits terms in leases that shorten the notice periods specified in NRS Chapter 40).
The two most common types of notices
NRS Chapter 40 provides several different types of notices that are utilized based upon the nature of the particular lease default or dispute. However, the majority of commercial landlord-tenant matters are either defaults in the payment of rent (NRS 40.2512) or failures to perform conditions of the lease (NRS 40.2516).
Summary eviction and unlawful detainer
There are two separate eviction remedies. The first, which is only available where the default is the failure to pay rent, is the summary eviction remedy provided in NRS 40.253. The other eviction remedy, utilized for all other defaults, is the verified complaint for unlawful detainer and writ of restitution provided in NRS 40.300.
Distinction between monetary defaults and defaults in the payment of rent
Not every monetary default is a failure to pay rent. For example, the monetary default may be for failure to pay common area maintenance charges or taxes. Such items may constitute rent only if the underlying lease provides that such charges and costs are additional rental. Friedman on Leases § 5:1.1, (2006)(internal citation omitted). This is an important distinction because the summary eviction remedy is not available where default is a monetary default that would not constitute the failure to pay “rent”. See 118.090 (defines “rent”) and NRS 40.253(9) (distinguishes rent from “collection fees, attorney’s fees or other costs other than rent….”). If the monetary default is not a failure to pay rent, the appropriate remedy is the unlawful detainer remedy specified in NRS 40.300.
Claims for contract damages for post-eviction rent
NRS 40.253, the statute providing the supplemental remedy of summary eviction, does not discuss whether an order for summary eviction releases the tenant from claims for contract damages for post-eviction rent. Nevertheless, some attorneys argue that an eviction does release a tenant from liability for such damages. They argue that their position is supported by the Supreme Court of Nevada’s dicta statement in Lynn v. Ingalls, 100 Nev. 115, 676 P.2d 797 (1984), that a landlord may “elect to declare the lease terminated and seek an unlawful detainer action to oust the defaulting tenant. See NRS 40.253.” They also point to NRS 40.360(1), which provides that a judgment for unlawful detainer “shall also declare the forfeiture of such lease or agreement.”
Unfortunately, the Supreme Court of Nevada has not determined whether a landlord that obtains a summary eviction pursuant to NRS 40.253 or a judgment for restitution pursuant to NRS 40.360(1) loses its claim against the tenant for contract damages for post-eviction rent. Courts are now less unfriendly to the idea of enforcing savings clauses that reserve the rights of a landlord to contract damages for post-eviction rent. See Friedman on Leases, § 16:3.3 (2006); Hi Kai Investment, Ltd. v. Aloha Futons, Beds & Waterbeds, Inc., 929 P.2d 88 (Haw.1996); and Circuit City Stores, Inc. v. Rockville Pike Joint Venture Limited Partnership, 829 A.2d 976 (Md.2003). Therefore, if there is a well-drafted savings clause in the lease, the landlord has a strong argument that it is entitled to contract damages for post-eviction rent. Nevertheless, the landlord should understand this issue prior to utilizing the NRS Chapter 40 eviction remedies.
Five-day notice to pay rent or quit jurisdiction
If the default is a default in the payment of rent, the notice must conform to the requirements of NRS 40.253(3). A link to a good sample Five-Day Notice to Pay Rent or Quit may be found on the Las Vegas Township Justice Court website, http://www.clarkcountycourts.us/lvjc/court-forms.html. NRS 4.370(1)(g) provides that the jurisdiction of the justice courts is limited to those landlord-tenant matters where the damages claimed are less than $10,000.00. Therefore, if the amount of delinquent rent is in excess of $10,000.00, the district court would have jurisdiction. Keep in mind, however, that most commercial landlord-tenant matters will exceed $10,000.00 and, therefore, will be within the jurisdiction of the district court.
Five-day notice to perform covenant or surrender
NRS 40.2516 provides that a tenant is guilty of an unlawful detainer if it remains in possession after it receives and fails for five days after service to comply with a written notice requiring the performance of a condition or covenant of the lease. The statute does not contain a form, but it does specify the required language. In common practice, the NRS 40.2516 notice looks much the same as the NRS 40.2512 Five-Day Notice to Pay Rent or Quit. One important distinction is that the Five-Day Notice to Perform Covenant or Surrender will not specify that the tenant may file a response in the court. There is no need for such a response because the landlord is not entitled to seek a summary eviction under NRS 40.253 when the default is not for the failure to pay rent. Rather, if the tenant does not comply with the notice, the landlord will have to file a verified complaint for unlawful detainer and motion to seek a writ of restitution pursuant to NRS 40.300.
Service of the notice on the tenant, subtenants, and any guarantors
The notice must be served in accordance with NRS 40.280. The notice should include proof of service (see the Five-Day Notice form referenced above) and should be served upon any guarantors of the lease in order to avoid their subsequent procedural defenses.
The tenant’s contesting affidavit
Pursuant to NRS 40.253(3), a tenant may file an affidavit “stating that he has tendered payment or is not in default in the payment of rent” with the court having jurisdiction over the matter. If the tenant files an affidavit contesting the Five-Day Pay or Quit Notice, the court shall, after service of notice upon both parties, hold a hearing “to determine the truthfulness and sufficiency” of the affidavit. If the court determines there is no legal defense, it may issue a summary order for removal of the tenant or an order providing the nonadmittance of the tenant.” NRS 40.253(6). If the court does find there is a legal defense, the request for summary eviction will be denied, but the landlord may continue with an action for unlawful detainer. NRS 40.253(6).
Affidavit of complaint for summary eviction
If the tenant does not file a contesting affidavit or comply with the Five-Day Pay or Quit Notice, the landlord will then file an Affidavit of Complaint for Summary Eviction. The requirements for the form of affidavit of complaint are set forth in NRS 40.253(5). Generally, the form must set forth specific information such as the term of the lease, the delinquent amount, the length of time the tenant has gone without paying, and the amount of rent claimed. NRS 40.253(5). A sample affidavit of complaint for summary eviction can be found on the Las Vegas Township Justice Court website, http://www.clarkcountycourts.us/lvjc/court-forms.html (but keep in mind the jurisdictional issues discussed above). Also, the landlord will include claims for post-eviction damages.
When they are understood, the eviction remedies contained in NRS 40.253 and 40.300 may be utilized to help landlords quickly achieve desired results. Those quick results will help you enjoy representing commercial landlords.
Jim Smyth is a partner at Kummer Kaempfer Bonner Renshaw and Ferrario practicing in the areas of construction, commercial litigation and landlord-tenant law. He may be reached via email at jsmyth@kkbrf.com or via telephone at (702) 792-7000.
Parallel Paths to Accomplishment
By: Tabitha Fiddyment and Stephanie Allen
Published in the May edition of Communiqué, the publication of the Clark County Bar Association.
Congratulations to the William S. Boyd School of Law on ten successful years. The last ten years may seem to many of us like a lifetime, but it has really been no time at all for the law school. We remember our decision to attend Boyd and the enthusiasm surrounding the opening of the school. Now, ten years later, we find ourselves examining our professional lives and comparing how the professional accomplishments of ours have paralleled the law school’s success over that same ten year period. We are grateful for many things in our lives and in our careers. It is only appropriate to thank the law school, and the community that invested in the law school, for also investing in us.
A lifetime for us and ten short years for the law school
Ten years ago, when the law school first opened its doors, we were juniors in college at the University of Nevada, Reno. We had already decided that law school was the next step in our academic careers, but we had not yet identified our school of choice. Then, just barely twenty-one years of age, the next ten years of our lives would ultimately shape our future. We went from young college students struggling to make ends meet to young professionals struggling to pay off student loans. We would take the bar exam, we would get married, we would buy our own homes and we would become successful practicing lawyers. Those ten years seemed like a lifetime.
In those same ten years, Nevada’s only law school opened its doors at a temporary facility in the former Paradise Elementary School, built a notable law library, gained accreditation in its first five years, funded, built and relocated into a state-of-the-art facility on the main University of Nevada, Las Vegas campus, developed writing programs and dispute resolution clinics that are among the most reputable in the Country, received a U.S. News and World report ranking in the top one hundred law schools in the Nation and graduated over one thousand jurists.
See http://gradschools.usnews.rankingsandreviews.com/grad/law/search.
Boyd’s accomplishments in ten short years are incredible. What seemed like a lifetime to us was record time for the Boyd School of Law.
A leap of faith for us and contagious enthusiasm for Boyd
Looking back, when we chose Boyd for our legal education, we took a leap of faith on a new and unaccredited law school. In fact, the American Bar Association’s suggested top consideration for choosing a law school is that it be ABA-Accredited.
See http://www.abanet.org/child/choosinglawschool.pdf. Virtually every state requires graduation from an ABA-Accredited law school in order to sit for the bar exam.
See http://www.abanet.org/child/choosinglawschool.pdf. We understood this risk, but we were committed to Nevada, and we believed that the law school would succeed. The enthusiasm surrounding the law school was contagious. Everyone with whom we discussed the law school had no doubt it would be a success. The founding Dean, Richard Morgan, traveled the state advocating for the school and its ability to graduate talented, capable jurists invested in Nevada. Similarly, Nevada lawyers and judges were excited by the thought of working with and training local graduates. They believed in the depth of knowledge it would add to the legal community, and they welcomed a new perspective. Business owners and executives alike were anxious for another post graduate academic institution that would help attract quality individuals to Nevada. They too promised their support and encouraged us to attend Boyd. The community as a whole was committed to doing everything it took to establish a state-of-the-art school for Nevada. The financial backing was phenomenal. The professors were, and continue to be, top notch. The legal community was ready and willing to welcome the law school it never had. The last component was to attract quality students to the school. With all the factors in place, success for the law school was inevitable.
Examining how our professional lives have paralleled the law school’s success
We took that leap of faith and, on a hot August morning in 2000, we packed all of our combined belongings into a twenty-four foot long U-Haul and left our Northern Nevada families and friends in Reno and Carson City for Las Vegas. We were both encouraged by our parents, college professors, local prominent business people, judges and other lawyers in Nevada to attend the Boyd School of Law. It was impressed upon us that if we believed in our own abilities and in the potential of the Law School, our success was certain. We were leaving most of what we knew behind, but we had the support of lasting friendship that began at Carson High School, an investment in and connection to the State we grew up in, and the youthful hope of being part of something great.
The law school experience was humbling for both of us. Although we initially attended class in an elementary school setting, the lessons were profound and thought-provoking. We struggled with different aspects of the experience, but nonetheless, we grew as individuals, as future lawyers and as friends.
We are now senior associates at the statewide law firm of Kummer Kaempfer Bonner Renshaw & Ferrario and practice together with some of the most esteemed and well-regarded government affairs lawyers in Nevada. Building on the foundation provided by Boyd, we have developed reputations as specialists in the area of land use and zoning. We have had the opportunity to participate in some of the largest projects in the history of development in Las Vegas.
In addition to our land use and zoning practice, we both serve the community, through active involvement in the State Bar and community organizations and through pro bono service. Today, the law school’s accomplishments have been recognized not just locally but nationally. The law school became fully accredited within five years and became a member of the Association of American Law Schools shortly thereafter. The law school’s legal writing program is ranked third in the Nation. See Best Graduate Schools, (visited April 9, 2008) .
See http://grad-schools.usnews.rankingsandreviews.com/grad/law/writing. The Saltman Center for Conflict Resolution is ranked ninth in the Nation. See Best Graduate Schools, (visited April 9, 2008) http://grad-schools.usnews.rankingsandreviews.com/grad/law/dispute. The Wiener-Rodgers Law Library is the biggest in the state and has over 300,000 volumes or volume equivalents. See http://www.law.unlv.edu/library.html. The faculty comes from all over the country with stellar reputations and credentials.
In addition, the law school maintains a curriculum that requires all first-year law students to “participate in a Community Service Program and spend substantial time providing legal information to people in the community that do not have access to lawyers. In partnership with Clark County Legal Services and the Clark County Pro Bono Project, law students prepare and present workshops at numerous locations in our community, on basic legal matters such as small claims court procedure, family law and procedure, bankruptcy, guardianship and paternity/custody matters.”
See http://en.wikipedia.org/wiki/William_S._Boyd_School_of_Law citing Richard Morgan, Public/Private Partnerships Are Not The Only Kind of Important Collaboration; There Is Another Significant Sort Of Partnership-That I Will Refer to As A “Public/Public Partnership”-From Which The Boyd School Of Law Has Benefited Greatly, Nev. Law, Feb. 2006, at 28.
The speed with which the law school obtained accreditation and accomplished all of this is remarkable and has been matched by few other law schools. In just ten short years, the law school has met and exceeded everyone’s expectations.
We are grateful to the law school
We are grateful for those who believed in and financially supported the law school. We value the incredibly talented law school faculty who have spent, and continue to spend, tireless and sometimes thankless hours focused on the law school’s success and on the success of its students. In just ten short years, the Boyd School of Law has become a deep-seated and highly respected part of the Nevada legal community. We are proud to be alumni of the Boyd School of Law and are grateful to the law school for providing us with the necessary tools to succeed. We have been fortunate to share a parallel path to accomplishment with the law school.
Tabitha Fiddyment and Stephanie Allen have been friends for nearly twenty years. They graduated high school together. They went to the University of Nevada, Reno together. They attended law school together, and they are now both senior associates in the Land Use & Government Affairs Department of Kummer, Kaempfer, Bonner, Renshaw & Ferrario. They did not marry the same man.
Since 1909, the Nevada Constitution has allowed direct democracy in the form of the initiative process. Nevada is one of twenty-seven states that have the initiative or popular referendum process whereby citizens can place issues on the ballot. However, Nevada is unique in its requirement that an initiative to amend the constitution must be approved by voters twice, in two successive elections, before taking effect. Despite that requirement, voters have seen a steady increase in the number of initiative petitions.
By John W. Griffin and Russell M. Rowe
An old sign in the lobbyist room at the Nevada Legislature reads, “Don’t tell my mom I’m a lobbyist. She thinks I play piano at a whorehouse.” While always worth a good laugh, the sign is not far from the reputation lobbyists have in the public eye. The public’s misperceptions are plentiful about what lobbyists really do and their role in the legislative process. This article will provide a glimpse into what a real day at the Nevada Legislature is like for those working the halls.
By Russell M. Rowe
The arrival of an odd-numbered year in Nevada ushers in a new season of the Nevada Legislature and, along with it, potential opportunities and perils for attorneys and their clients. Those unfamiliar with the legislative process tend to look upon it with disdain and skepticism. However, attornies involved in the legislative process recognize it for what it truly is: a process for the resolution of public policy issues afforded to us by our democracy, and a process that deserves the respect of all citizens, particularly those of us given the privilege of administering, interpreting and upholding the law.
By Robert L. Crowell, Esq. & Russell M. Rowe, Esq.
In the summer of 2005, the Supreme Court of the United States decided a momentous case regarding government’s rights when exercising the power of eminent domain. Specifically, the Court held that a “city’s exercise of eminent domain power in furtherance of an economic development plan satisfied Constitutional ‘public use’ requirements.” Kelo v. City of New London, Connecticut, 125 S. Ct 2655 at 2656 (2005). However, the Court specified that “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings of power.” Id. at 2668.
By Tabitha Keetch
In June, Carson city attorney Robert Crowel merged the law firm started by his father in 1954 — Crowell, Susich, Tackles & Griffin — with Kummer Kaempfer Bonner Renshaw and Ferrario. “We are looking for a way to offer clients a broader scope of representation,” he says of the union with Kummer Kaempfer, which has offices in Reno and Las Vegas. A native Nevadan, Crowell is past president of the State Bar of Nevada, and past president of the Colorado River Commission of Nevada. He is currently president of the Carson City School Board and chairman of the board of the Carson City Chamber of Commerce. He is a graduate of Carson City schools, Stanford University and Hasting College of the Law. Crowell’s government affairs expertise across a wide range of areas — including public utilities, telecommunications and transportation — has earned him a reputation as one of the Capitol’s most respected and effective advocates.
By Robert Crowell
If you are a contractor and you have customer who has contracted with you to construct tenant improvements, chances are that your customer has a lease and a landlord. Nevada law (and probably that lease) require that the customer either fund a construction disbursement account or record a surety bond in connection with the work of improvement under your contract. Rest assured that one of your customer’s goals is to meet those business obligations by meeting the requirements of the law and the lease.
By James E. Smyth