After Myung Sung Presbyterian Church, Inc. MSPC leased a portion of its real property to North American Association of Slavic Churches & Ministries, Inc. NAASCM, litigation ensued over the terms of the lease. MSPC appeals from the judgment entered on a jury verdict in favor of NAASCM, and for the following reasons, we reverse. On March 9, 2000, MSPC leased a portion of its three-acre lot in the City of Norcross to NAASCM for the purpose of allowing NAASCM to place a temporary modular building on the lot. The lease term was for ten years with an option granted to NAASCM for an additional five years. As agreed rent under the lease, NAASCM granted MSPC certain rights to use of the modular building purchased by NAASCM and placed on the MSPC property pursuant to the lease. It is undisputed that when executing the lease both parties were aware that the modular building placed on the lot pursuant to the lease was in compliance with the City of Norcross zoning code only because the City’s Zoning Board of Appeals had granted a zoning variance to MSPC on October 1, 1998, which authorized the placement of a modular building on the lot for a period of five years. It is also undisputed that, under the terms of the lease, NAASCM was granted a usufruct, not an estate for years, and therefore only MSPC, as the sole owner of the real property, had the right to apply for another zoning variance. See OCGA § 44-7-1. Accordingly, when the lease for the ten-year term with five-year option was executed on March 9, 2000, both parties were aware that only three and a half years remained before the zoning variance authorizing the modular building was scheduled to expire, and that only MSPC could apply for another variance to allow the modular building to remain on the lot during the agreed lease term. Nevertheless, the lease was silent as to whether the parties intended as part of the lease agreement that MSPC was required to apply for another zoning variance. The lease did provide that: “In the event that the City of Norcross requires at any time in the future the removal of the modular unit building, it shall be the responsibility of NAASCM to have the building removed and NAASCM shall pay all costs of removing said building.” After the five-year zoning variance expired without any attempt by MSPC to apply to the City of Norcross for another variance, the City informed MSPC in January 2004, that the modular building on its property was in violation of the City zoning code and demanded that the building be immediately removed from the property. Citations were issued to MSPC for violation of the City zoning code, and the Municipal Court of Norcross subsequently ordered that the modular building be removed because it violated the zoning code.
In February 2004, MSPC sued NAASCM for breach of the lease agreement, and NAASCM answered and counterclaimed asserting that MSPC breached the lease. The case was tried before a jury on claims asserted by the parties in a February 2007 pre-trial order. In the order, MSPC contended that, under the express terms of the lease, the lease terminated when the variance expired and the City demanded that the modular building be removed. According to MSPC, NAASCM breached the lease by failing to remove the building from the MSPC property immediately after receiving notice that the zoning variance had expired and the City required removal, instead waiting until May 2006 to remove the building. MSPC also asserted that, during the period the modular building remained on the property under the lease, NAASCM breached the lease by denying MSPC its full right to use of the building. NAASCM asserted that, during the period the building remained on the property pursuant to the lease, MSPC breached an implied covenant of quiet enjoyment contained in the lease by denying it the full use and enjoyment of the modular building to which it was entitled. NAASCM also asserted that MSPC breached an implied covenant of good faith and fair dealing contained in the lease by failing or refusing to timely apply to the City of Norcross for another zoning variance sufficient to allow the modular building to remain on the lot during the agreed lease term. In conjunction with the latter assertion, NAASCM claimed that the lease contained an implied provision requiring MSPC to apply for another zoning variance.
