## Facts

- A commercial lease required the lessors to repair the roof and exterior walls, subject to an exception for damage caused by the lessees’ negligence or improper use.
- The lease also required that notices and demands be made in writing and served in a specified manner.
- After construction of the leased building, roof leaks developed several years later over the market area and other tenant spaces.
- The lessees repeatedly paid for repairs themselves; contractors later advised that repair was no longer practicable and recommended installing a new roof.
- The lessees replaced the roof in two stages, paying for the work without giving the lessors written notice (or any notice) and without giving the lessors an opportunity to repair or replace the roof.
- Years later, the lessees reviewed the lease, asserted the lessors had been contractually responsible for the roof work, demanded reimbursement, and sued after the lessors refused.
- The lessors denied knowledge of the roof condition or replacement until the lawsuit and claimed prejudice from losing the opportunity to choose repair methods, contractors, and costs.

## Issues

1. Whether the lessors’ express covenant to repair the roof obligated them to reimburse the lessees for replacement costs incurred without providing the contractually required notice and opportunity to perform.
2. Whether notice and opportunity to repair were conditions precedent to enforcing the lessors’ repair covenant.
3. Whether the lessees could recover in restitution for the benefit conferred by a new roof despite noncompliance with the lease’s notice requirements.
4. Whether the lessees were entitled to attorney’s fees under the lease.

## Decision

- The court held that the lessors’ duty to perform the roof-repair covenant was conditioned on the lessees giving notice and an opportunity to perform.
- Because the lessees undertook repairs and replacement without the required notice, they could not recover contract damages for the roof work.
- The court rejected the trial court’s restitution-based award as inconsistent with the parties’ express contractual allocation of responsibilities.
- The judgment was modified to eliminate the restitutionary recovery; the lessees were not entitled to reimbursement.
- The lessees were not entitled to attorney’s fees.

## Legal Principles

- An express covenant by a lessor to repair may be enforceable only if the lessee provides notice of the defective condition and a meaningful opportunity to repair.
- A party who unilaterally performs work covered by another’s contractual duty, without complying with required notice procedures, may forfeit contractual reimbursement.
- When an express contract governs the subject matter, restitution generally is unavailable to impose a result that contradicts the contract’s allocation of risk and performance rights absent an independent basis for avoiding the contract.
- Fee-shifting under a lease depends on prevailing under the contractual theory and compliance with contractual obligations.

## Conclusion

The court treated notice and opportunity to perform as conditions to enforcing the landlord’s repair covenant and held that a tenant who replaces a roof without the required notice cannot shift the cost to the landlord through either contract damages or unjust enrichment.


Wal-Noon Corp. v. Hill, 45 Cal. App. 3d 605, 119 Cal. Rptr. 646 (Ct. App. 1975)