WELLFLEET — Trudy Vermehren, the owner of the popular Fox & Crow Café on Main Street, is facing a threat of eviction at the height of the tourist season following the deterioration of her relationship with her landlords, John O’Toole and Grant Hester, over the last several months.
On July 13, O’Toole and Hester, owners of the property at 70 Main St., served Vermehren, who leases one of their buildings, with a “notice to quit.” She and her lawyer, Bruce Bierhans, have responded with a complaint seeking $200,000 in damages, and the café, for the time being at least, remains open.
The notice to quit said the landlords were terminating Vermehren’s lease within five days, or by July 18. The landlords have now served her with a summary process action, filed in Orleans District Court, pursuing the eviction, according to Bierhans.
Vermehren is in the third month of a five-year lease she signed in April.
The eviction action also applies to the four rooms Vermehren rents in the same building to house her employees.
O’Toole and Hester, who run the Copper Swan Inn and a new cocktail lounge in the walkout basement of the same building the Fox & Crow is in, claimed that Vermehren had failed to pay one month’s rent ($6,000) due by June 1 as well as the second half of the payment for the employee housing ($8,000) that was due on May 15. They also based the eviction on nonpayment of a utility bill for $5,867. On June 27, O’Toole and Hester sent a notice of default regarding the money they said was owed to them.
Bierhans responded to the default notice on July 6. The $6,000 rent payment, he wrote, was not related to Vermehren’s monthly rent, which was current, but was the final month’s payment under the five-year lease. Bierhans argued that it was not paid because his client wanted to know where to send it. Such final-month’s-rent payments are generally put in an escrow account, Bierhans told the Independent.
The second half of the employee housing payment was withheld because of the condition of the staff housing, which Bierhans said was uninhabitable. The unpaid utilities bill had not been properly calculated, he argued. It is split by percentage between the landlord and tenant. Vermehren paid the corrected amount directly to the utility company on July 7, her lawyer said.
The landlords’ response to these explanations was the July 13 notice to quit.
Now they say Vermehren’s lease has been terminated; she asserts it remains in effect.
Bierhans filed a complaint on Vermehren’s behalf in Orleans District Court on July 20 seeking $200,000 from O’Toole and Hester for failing to meet their contractual obligations, which has resulted, the complaint states, in loss of investment, loss of employees, and loss of business.
Bierhans asked the court for an injunction to prevent O’Toole and Hester from evicting the Fox & Crow and from interfering with the cafe’s business. He also requested a jury trial.
According to the complaint, there has been no hot water, and sometimes no water at all, in both the café and staff housing, despite assurances from the landlords that the problem had been corrected.
The landlords also locked a door to the electrical panel so that Vermehren can’t quickly restore power when a circuit breaker is tripped, the complaint said.
Her employees arrived for the summer to find their rooms had not been cleaned, Vermehren said; there were broken windows, missing screens, and broken locks, and exterior doors that did not latch, according to the complaint. Those types of repairs are required under Massachusetts law governing minimum standards for habitability.
In an interview, O’Toole said that many of Vermehren’s complaints cropped up only after she received the demand for delinquent payments. “Suddenly, every day or every second day a fuse was tripping,” O’Toole said.
He claimed that the circuit breakers were being tripped because of an overload related to new appliances Vermehren had put in. He conceded that the electrical panel is in an area that Vermehren can’t access, “but she could come down and ask for permission,” he said.
Regarding the employee housing, O’Toole said the rooms had been “broom swept, which is the standard lease requirement. Any broken window was repaired,” he said. “As for screens, it’s not a requirement to put screens on windows.”
In fact, under Massachusetts law, landlords must install screens on windows and ensure they are insect-proof. When a reporter looked at the employee quarters, the kitchen window was propped open with a wine bottle and had no screen. The area was infested with bugs.
While landlord and tenant have had a tense relationship for a while, town officials remained unaware of problems at the property until June, when a visit from the fire chief led to a more thorough inspection that included the state fire marshal’s office on July 19. A report on the findings of that inspection should be ready in a few days.
Fire Chief Richard Pauley said the June visit was to inspect the new cocktail lounge in the walkout basement. He had heard O’Toole and Hester were opening the lounge, which lacked a required inspection by the fire dept. While there, the chief said, he spotted some minor corrections that had to be made.
Pauley then inspected the rooms directly above the lounge where the employee housing was. He ordered the removal of a stove that was in a small kitchen area and up against a wall, leaving the four employees with no way to cook meals. Pauley told the Independent that the area was too small for a “heat-producing appliance.” It had previously been a bedroom.
Under Massachusetts laws, landlords are required to provide a stove for tenants.
“The Fox & Crow is unable to include potential housing as an incentive to future employees and has been unable to hire replacements for the three key employees who left their jobs due to the conditions in staff housing,” Bierhans’s complaint says.
To that, O’Toole said he was providing “sleep accommodation” for the workers, not an apartment.
Vermehren moved the Fox & Crow Cafe from Commercial Street to 70 Main St., formerly the Duck Creeke Inn, in mid-2022, signing a one-year lease with O’Toole and Hester, who had just bought the property for $3 million.
“I came here with a vision of being here for a very long time,” Vermehren said last week. She declined to say more because of the pending court action.
“As she has done with her many contributions to the Wellfleet community, my client has undertaken extraordinary efforts to make this a wonderful community space,” said Bierhans in an email. “The property owners now seek to wrongfully reap the benefit of those efforts for themselves. We intend to hold them accountable.”
Editor’s note: An earlier version of this article, published in print on July 27, omitted staff reporter Sam Pollak’s name from the byline.
