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1. Landlord and Tenant_security_no duty under lease
The terms of the parties' lease contradicted defendants' claim that plaintiff owed defendants a duty to provide adequate security, and summary judgment was correctly granted for plaintiff on an action alleging default on a lease.
2. Landlord and Tenant_implied covenant of quiet enjoyment_criminal acts by third
The implied covenant of quiet enjoyment does not extend to the acts of trespassers and wrongdoers and does not impose upon the landlord the duty to prevent criminal acts by third parties. Summary judgment was correctly granted for plaintiff-landlord in an action alleging that defendants defaulted under their lease.
3. Landlord and Tenant_constructive eviction_lack of security
Constructive eviction occurs when a landlord's breach of duty under the lease renders the premises untenable; here, the lease did not require plaintiff to provide security, defendants did not present any statutory or common law basis upon which to impose that duty, and summary judgment was correctly granted for plaintiff in an action for alleging that defendants defaulted under their lease.
Shuford, Hunter & Brown, P.A., by G. Martin Hunter, for
Andresen, Vann & Butler, by Christopher M. Vann, for defendant-appellants.
Defendants, Sole Survivor, Inc., Michael Johnson, and Sarah Johnson, appeal from an order of summary judgment entered in favor of plaintiff, Charlotte Eastland Mall (Eastland). We affirm. The pertinent facts may be summarized as follows: Eastland is a shopping mall in Charlotte, North Carolina. On 14 February 1994 defendant Sole Survivor signed a ten year lease with Eastland for the operation of a tailoring and shoe repair business at the mall. The lease required Sole Survivor to pay monthly rent in a set amount, as well as additional rent in an amount calculated as a percentage of Sole Survivor's gross sales. Defendants Michael and Sarah Johnson also signed a separate agreement to act as sureties on the lease. In February 2002, after eight years of the ten year lease had elapsed, the defendants vacated the leased premises at Eastland, and thereafter ceased to pay rent.
On 29 October 2002 plaintiff filed suit against defendants, alleging that they had defaulted on the lease. Plaintiff sought $96,275.48 in rent owed, as well as late charges, interest, attorney's fees, and court costs. In their answer, defendants asserted as an affirmative defense that plaintiff failed to maintain a safe environment for the corporate defendant and its customers thereby rendering the terms of the lease and any guaranty executed in this matter null and void. On 11 June 2003 plaintiff moved for summary judgment. Following a hearing, the trial court on 30 July 2003 granted summary judgment in favor of plaintiff. From this order, defendants appeal.
9.(d) Security. Landlord may, from time to
time and to the extent it deems appropriate in
its sole discretion, determine whether to
supply security services in the Common Areas
and additional traffic control for the
Shopping Center. Notwithstanding any other
provision of this Lease, Landlord shall not be
liable for any loss or damages suffered by
Tenant . . . by failure to supply such
services[.] . . . It is specifically
understood and agreed that, by supplying such
services, Landlord shall not be deemed to
relieve Tenant of its duty to maintain
security within the Demised Premises nor of
its performance of the terms, covenants and
conditions of this lease.
(emphasis added). We conclude that the pertinent terms of the lease contradict defendants' argument. The lease clearly states, not that plaintiff is obligated to provide security, but that plaintiff may provide security in its sole discretion. Indeed, the lease expressly states that plaintiff shall not be liable for any loss or damages suffered by Tenant caused by plaintiff's failure to supply such services. Moreover, this paragraph explicitly provides that plaintiff's provision of security services shall not be deemed to relieve Tenant of its duty to maintain security within the Demised Premises nor of its performance of the terms, covenants, and conditions of this lease. We conclude that the terms of the lease fail to support defendants' claim that plaintiff owed defendants a duty to provide adequate security.
 Defendants also argue that plaintiff's failure to provide more security at Eastland was a breach of the implied covenant of quiet enjoyment. Under North Carolina law, . . . a lease carries an implied warranty that the tenant will have quiet and peaceable possession of the leased premises during the term of the lease[,] . . . stand[ing] for the principle that a landlord breaches the implied covenant of quiet enjoyment when he constructively evicts the tenant. K & S Enters. v. Kennedy Office Supply Co., 135 N.C. App. 260, 267, 520 S.E.2d 122, 126-27 (1999) (citations omitted). However, it is long-settled that [t]he covenant of quiet enjoyment . . . does not extend to the acts of trespassers and wrongdoers[.] Huggins v. Waters, 167 N.C. 197, 198, 83 S.E. 334, 334 (1914). Defendants do not cite any cases insupport of the proposition that the implied covenant of quiet enjoyment imposes upon plaintiff-landlord the duty to a commercial tenant to prevent criminal acts by third parties, and we find none.  Defendants also argue that the plaintiff's failure to take measures to reduce crime at Eastland led to their constructive eviction. This argument has no merit.
Constructive eviction occurs when an act of a landlord deprives his tenant of 'that beneficial enjoyment of the premises to which he is entitled under his lease,' causing his tenant to abandon them. In other words, constructive eviction takes place when a landlord's breach of duty under the lease renders the premises untenable.
K & S Enters., 135 N.C. App. at 266, 520 S.E.2d at 126 (quoting Marina Food Assoc., Inc. v. Marina Restaurant, Inc., 100 N.C. App. 82, 92, 394 S.E.2d 824, 830 (1990)) (emphasis added). In the instant case, defendants have failed to show that plaintiff breached any duty under the lease.
We conclude that the terms of the lease do not require plaintiff to provide adequate security. Nor have defendants presented any statutory or common law basis upon which to impose upon defendant landlord a duty to provide adequate security for the benefit of its commercial tenants. This assignment of error is overruled.
Defendants also argue that the trial court erred in its calculation of the amount of damages. However, defendants did not assign this as error, and thus have not properly preserved this issue for appellate review. [T]he scope of review on appeal isconfined to a consideration of those assignments of error set out in the record on appeal[.] N.C R. App. P. 10(a). This argument is dismissed.
For the reasons discussed above we conclude that the trial court's order for summary judgment should be
Judges GEER and THORNBURG concur.
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