Yaffe v. S. S. Pierce Co.

These are cross petitions brought under G. L. c. 231A by landlords and their tenant for an interpretation of a real estate tax clause in a lease and determination of the tenant’s obligation thereunder. The cases were consolidated for trial and submitted upon an “agreed statement of facts.” The tax clause stated in pertinent part that “the Lessee shall pay... in each calendar year of the lease term, as additional rent, forty-five (45%) percent of the increase in the total real estate tax assessed ... as such ... tax exceeds that assessed ... for the year 1969.” From 1970 to 1972, the tenant paid 45% of the difference between the original tax in the base year (1969) and the original tax in subsequent years. In 1973 the landlords received abatements (which had been sought for each tax year) for all years, 1969 through 1972, and billed the tenant on the basis that the tax clause required the tenant to pay 45% of the difference between the final tax after abatement for 1969 and the final tax after abatement for the subsequent years. A Superior Court judge adopted the landlords’ interpretation of the clause and rejected that of the tenant, which contended that the clause required it to pay 45% of the difference between the original tax for 1969 and the tax after abatement for subsequent years. The cases are governed by Thorner v. Stone, 357 Mass. 782, 783 (1970), in which “tax assessed” was interpreted to mean the tax as abated. Judgments affirmed.