Are All Constructions Structural?

Again, we ask: “What is a structure?” We say, “again,” because Ruminations explored (mined) this topic a little more than three years ago in a blog posting titled: “What Is A Structural Component? Do You Know?” To see it (anew or again), click: HERE.

We’ll start with the take-away for today. It is that we might want to define important words that we ponder at times. “Structure” and the form “structural” come to mind. After all, if you’ve been in business of “reading leases (or other real property agreements)” for any decent period of time, you’ve faced the need to answer whether some “thing” is a structure. For sure, buildings are structures. Are fences or retaining walls structures? Perhaps the answer is fact-dependent. Perhaps we need to call an expert in the mold of Justice Potter Stewart (who wrote, in 1964, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-ore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”).

Today, we write not about hard-core pornography, though that might boost readership. Today, we look at one possible candidate for the picture next to the word “structure” in the dictionary – the pylon sign. And, taking the Justice Stewart approach, we caution that what the United States District Court for the District of Massachusetts decided in August might not apply to a pylon sign on a different shopping center in a different (or even the same) jurisdiction. We’re taking our facts from the decision you can read by clicking: HERE.

Perhaps, we shouldn’t have invoked the “dictionary” because that form of reference manual doesn’t appear to be very helpful when looking at a pylon sign. Here’s a sampling of what we found in dictionaries. “Structure” means:

Something built or constructed, as a building, bridge, or dam. (www.dictionary.com)

Something (such as a building) that is constructed (www.merriam-webster.com)

A building or other object constructed from several parts. (en.oxforddictionaries.com)

A constructed building (www.yourdictionary.com)

Something built or constructed, as a building or dam (Webster’s New World College Dictionary)

Something constructed, such as a building (The American Heritage® Dictionary of the English Language, Fifth Edition)

Something that has been built. (www.collinsdictionary.com)

A framework or construction with elements identifiable giving stability and form and able to resist strains and stresses. (thelawdictionary.org)

Anything constructed or erected with a fixed location on the ground. Among other things, structures include buildings, mobile homes (“manufactured homes”), walls, fences, billboards, and poster panels. Greene County v. N. Shore Resort, 238 Ga. App. 236, 237 (Ga. Ct. App. 1999) (definitions.uslegal.com)

Before we draw the “picture,” we’ll describe the frame. To do so, we rely on some inferences. Even if we haven’t perfectly “guessed” at the facts, the bottom line of today’s posting will still be valid.

There were two adjacent retail projects. One parcel was a single tenant property on which the original tenant constructed all of the improvements. [Think about that. The concept of real property “improvements” is broader than “building” or “structures.” A car-stop or curb bumper is an improvement; it is neither a building nor a structure.] The adjacent parcel contained a multi-tenant shopping center.

Blowing past the number of pylon signs on the single-tenant property and their history, the key information is that the pylons were never used by the “single” tenant on the property where located. They were used to advertise the presence of certain tenants on the multi-tenant shopping center. That is, they were only used for the adjacent shopping center until the sole building on the single-tenant property was divided into two spaces. Then, one of the subtenants on that parcel, with its sublandlord’s permission, placed its own sign on one of the pylon signs. Yes, for 22 years, the occupant of the single tenant parcel had no interest in the pylon sign. [By the way, there was no issue that the multi-tenant shopping center’s owner could use a pylon sign on the other owner’s property.]

The owner-landlord of the single-tenant property notified its tenant (the sublandlord) that it was in default of the 22- year old lease by reason of placing a sign on a pylon sign. The tenant went to court to get a declaration that it was not in default. A number of “default” theories were posed by the landlord. We’ll discuss only the one dealing with today’s blog topic – “structures.” In particular, we’ll deal with the landlord’s assertion that, by installing a sign on an existing “pylon,” the tenant, though having the lease-given right “to make alterations and improvements from time to time both structural and non-structural,” was not in compliance with the requirement that “exterior alterations to the structure [] be first approved by the landlord.” This summarizes the key text of the lease’s “Article 25.”

The court began with two observations. First, the lease did not define “structure.” Second, its use in the quoted language was “sui generis.” [Sui generis: “a class alone; unique or particular to itself.] That permitted the court to Ruminate about what this particular lease meant when it used “structure” within “Article 25.” Normally, we would do our own Ruminating, but here the court does a pretty good imitation of what we do, so we’ll share its Ruminations as follows:

Consequently, the plain meaning of the term in its context controls. This presents two interpretive possibilities, neither of which covers the pylon sign. The first is that “structure” refers simply to the building housing the storefronts. When initially executed in 1984, the lease required the then-tenant “to construct on the land the building and improvements” shown on an attached exhibit. … Two aspects of Article 25 link it to the original building envisioned by the lease. First, it is not uncommon to refer to a building as a structure. See, e.g., “Structure,” Black’s Law Dictionary (5th ed. 1979) (“Any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind.” Understood in this sense, the use of the singular term “structure” in Article 25 corresponds to the singular “building” envisioned by [the lease]. Second, an “exterior alteration[]” to a “structure” is logically read to refer to changes to the exterior of a building, such as work on a façade. This understanding is reinforced by the contrast between exterior alterations to the structure (which require landlord approval) and improvements (which do not). “Improvements” is a broader category that includes “buildings, but may also include any permanent structure or other development, such as a street, sidewalks, sewers, utilities, etc.” “Improvements,” Black’s Law Dictionary (5th ed. 1979). On this reading, the requirement that [the tenant] seek prior approval for “alterations to the structure” does not encompass other features of the site, such as the pylon sign.

[The court used a lot of words to teach that lesson; rest be assured, Ruminations would have used even more.]

Interestingly, in a different Article, the one covering signage, the lease described a particular pylon sign using the word, “structure.” There, an existing sign on the property was twice identified as a “pylon sign structure.” Pointing to that three word phrase, the landlord argued that a pylon sign was a structure. The court turned the landlord’s argument against the landlord, writing that if that were the case, then Article 25 (the one requiring the landlord’s approval) only applied to that “existing” sign, and not to any later added pylon sign (as was the one in dispute).

So, was the later-built pylon sign in dispute a “structure”? Maybe “yes”; maybe “no.” Had the landlord owned a working crystal ball earlier, it could have expressly insisted that altering that pylon sign, even by adding sign panels, would require the landlord’s prior approval.

To be fair, we suspect that the court was “no dummy.” We infer, by its absence from the court’s decision, that the tenant did not need the landlord’s approval for exterior signs. We suspect that the court knew that to be the case and wasn’t going to allow an end-run around that omission (or, rather, that part of the “business deal”). So, what we wonder about is whether the pylon sign in question might have qualified as a “structure” had the tenant done something to it above and beyond using it for its intended purpose (though, not for that particular tenant). What we are sure about, however, is that the lease’s failure to define “structure” gave the court the latitude to reach what it thought to be the right result.

To be even fairer, it isn’t likely that, when the lease was prepared, either party intended that the need for approvals for exterior alterations applied to putting a sign panel on any pylon sign. More likely, the landlord engaged someone to go through the lease, line by line, with the task of finding anything, anything at all, that could, with a straight face, be thrown up against the court’s wall. To say that doesn’t happen all the time would be disingenuous.

[Here’s another “by the way.” This dispute between the landlord and the tenant appears to be only one of a number presented to this and other courts. We are surmising that the landlord was seeking to rid itself of this particular tenant and had hired gladiators to construe the lease in ways never intended when it was signed.]

Again, if we use a word such as “structure” or “structural,” wouldn’t it be helpful if we knew what that word really meant? If we want a “flexible” word to apply to something not clearly within its umbra, i.e., something within its penumbra, then let’s just make it clear that it does apply.