703 F.3d 27
1st Cir.2012Background
- Plaintiffs Bachorz and Scuderi leased the Berkshire Auto premises from Miller under a 1996 15-year lease with a purchase option.
- The option could be exercised during the lease term if tenants were not in default.
- Miller died in 2007; his daughter Miller-Forslund became executrix of the estate.
- Plaintiffs allegedly subleased to subtenants without Miller’s written consent and allowed a leaky roof, which prompted a 2002 dispute.
- Plaintiffs repaired the roof in 2004 at their own expense and, in 2009, notified Miller-Forslund of intent to exercise the option; district court granted specific performance.
- On appeal, Miller-Forslund argues there was no waiver of the consent requirement and that the defaults were material; the court affirms summary judgment in favor of plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of written-consent requirement for subleasing | Bachorz/Scuderi—waiver occurred through conduct | Miller-Forslund—no writing waiver shown | Waiver established by clear conduct and statements |
| Municipal-violation defaults affecting option | Breaches were minor and did not prejudice Miller | Violations materially affected the lease terms | No substantial prejudice; option remains exercisable; summary judgment proper |
Key Cases Cited
- Cambridgeport Sav. Bank v. Boersner, 597 N.E.2d 1017 (Mass. 1992) (oral modification notwithstanding writing clause permissible under law)
- First Pa. Mortg. Trust v. Dorchester Sav. Bank, 481 N.E.2d 1132 (Mass. 1985) (written-modification requirement may be waived by conduct)
- Pear v. Davenport, 853 N.E.2d 206 (Mass. App. Ct. 2006) (strict view of options; separate waiver required for option conditions)
- KACT, Inc. v. Rubin, 819 N.E.2d 610 (Mass. App. Ct. 2004) (waiver may be inferred from conduct if clear and unequivocal)
- Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc., 831 N.E.2d 875 (Mass. 2005) (waiver by conduct allowed under circumstances)
- Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988) (waiver standards in contract-lease context)
- Glynn v. City of Gloucester, 401 N.E.2d 886 (Mass. App. Ct. 1980) (clear, decisive, unequivocal conduct may constitute waiver)
- Trinity Realty I, LLC v. Chazumba, LLC, 931 N.E.2d 510 (Mass. App. Ct. 2010) (substantial/compliance may permit exercising an option; trivial breaches Not dispositive)
- Sunoco, Inc. v. Makol, 372 F.3d 31 (1st Cir. 2004) (tenant-breach context; waiver and scope distinctions)