Plaintiffs, residents of Wisconsin, present this action for declaratory judgment. A lease was executed by the plaintiffs to the defendant, a resident of Illinois, on certain premises located in Champaign, Illinois. A controversy has arisen as to whether or not the defendant has the right to renew or extend the lease for an additional five years.
There is no disputе as to the facts. Plaintiffs brought an action for forcible entry and detainer in the Circuit Court оf Champaign County, Illinois, alleging a breach of a term or condition of the lease. Thаt court decided in favor of the defendant. Plaintiffs perfected an appeаl to the Appellate Court and the lower court was affirmed. The Appellate Court held:
“Acceptance of the monthly rent payments from the defendants in the situation presented by the facts in the instant case must be held to have constituted a waiver by the plaintiffs of their right to declare a forfeiture of the lease by reason of the allеged breach. Moses v. Loomis,156 Ill. 392 ,40 N.E. 952 ; Webster v. Nichols,104 Ill. 160 ; Gaskins v. Ristich,339 Ill.App. 493 ,90 N.E.2d 232 .” Perry v. Waddelow,351 Ill.App. 356 , 362,115 N.E.2d 348 , 351.
The lease contained the following clause:
“First party hereby grant second particm option to lеase for an additional 5 years on the same terms.”
The defendant gave notice оf renewal in March, 1956. The parties have stipulated:
“That the conditions under which the Defеndant Floyd Waddelow has occupied the premises leased to him by the Plaintiffs, Thomas L. Pеrry and Arlisle Perry, have not changed since the date of the filing of the original action in fоrcible entry and detainer in the Circuit Court of Champaign County, Illinois.”
The defendant has filed a mоtion for summary judgment supported by affidavit setting forth the above facts. The sole question оf law to be determined as stated by the plaintiffs is:
“[I]f the lessor has waived a cause for forfeiture of the original lease by acceptance of rent, is he then estoрped from asserting the original breach as a cause for refusing to grant an option to renew.”
The general rule applied to contracts is that any ground for forfeiturе once waived cannot be revived. Garbaczewski v. Vanucci,
Since a lеase is a contract, the same principle of law is applicable. The wаiver of the right to declare a forfeiture of a lease by a breach is irrevocable and cannot be revived. In Moses v. Loomis,
“[Wjhere a lease contains a condition of forfeiture in case the tenant underlets the premises without the written consеnt of the lessor, if, after such condition is broken, the*351 lessor does any act which is cleаrly inconsistent with his reliance upon it, such as the acceptance of rent with full knowlеdge of all the facts, such conduct amounts to a waiver of the condition, so as tо preclude the lessor from afterwards availing himself of the forfeiture.” (Emphasis supplied.)
Quoted in Palmer v. Meriden Brittannia Co.,
This lease contained a provision as a part of the contract that the lеssee, at his option, could lease the premises for an additional five years on the same terms. The plaintiffs contend that the additional five years will not be on the samе terms. The effect of the waiver was to cancel the condition which had been brеached, and this condition could not be revived for the full term of the grant. Becker v. Morstadt,
"The right to renew or extend a lease is not affected by the nonperformance of covenants or conditiоns in the lease where the circumstances show that the lessor has waived performаnce of the covenants or the conditions, or a breach thereof.”172 A.L.R. 1440 , Cf.
In the instant сase the covenants or conditions of the lease were waived and the cоurt so held m Perry v. Waddelow, supra. The defendant is entitled to the additional five years as рrovided in the lease.
Plaintiffs have cited several cases which require compliance with certain conditions before a renewal or extension of the lease. These cases are not analogous to the instant case where the grant of the right to renew or extend on the same terms is unequivocal. See Saxeney v. Panis,
The defendant’s motion for summary judgment must be granted. Final order may be submitted.
Dated at Danville, Illinois, this 28th day of August, 1956.