310 Mass. 646 | Mass. | 1942
This is a writ of entry to recover possession of a parcel of land located at Salisbury. The tenant pleaded nul disseisin and the right to hold under a lease and exten
The material facts follow: On February 1, 1936, the commissioner of banks in possession of the Lawrence Trust Company leased the premises in question to Albin Shaheen. The lease was for five years from February 1, 1936, and contained a provision that “the said Lessor grants to the said Lessee and his heirs, representatives and assigns the option of extending the terms of this lease for the further period of five years from the expiration hereof upon the same terms and conditions as are herein contained.” The rental was fixed at $500 annually, which was to be paid in equal , payments of $100 on the first day of each of the months of May, June, July, August and September. The lease did not contain any restriction against assignment, or any provision for formal notice of the exercise of the option for its extension. The original lessee assigned the lease to the tenant Shaheen, Inc. on March 14, 1936. The demand-ant purchased the premises ón or about September 1, 1938, and at the same time received an assignment of the lessor’s interest in the lease. The rent for the original term of the lease including that' payable September 1, 1940, was paid when due. The tenant continued to occupy the premises after February 1, 1941, and on February 11, 1941, the de-mandant notified the tenant’s subtenant by mail that the tenant’s lease had expired on February 1, 1941, and that the rent for the month of February (sic), 1941, and thereafter was to be paid to the demandant. On February 13 the tenant’s counsel sent a letter to the demandant’s counsel stating, in substance, that the tenant was occupying the premises under the “renewal” period of five years, that no formal notice of the tenant’s exercise of the option to extend the lease was necessary, and that the subtenant had been notified to continue to pay rent to the tenant. The demandant brought the present writ on February 10, 1941. The tenant tendered to the demandant the rent payable May 1, 1941, and June 1, 1941, when due.
In the instant case the option was for an extension, not for a renewal of the lease. In Shannon v. Jacobson, 262 Mass. 463, 466, the court pointed out the distinction between an option to extend a lease and an option to renew a lease, stating in substance that an option for the extension of a lease does not require or contemplate the execution of a new lease but requires the continuance of the original lease upon compliance with the terms of the option, whereas an option for the renewal of a lease contemplates a new lease. See also Leavitt v. Maykel, 203 Mass. 506, 509, 510, and cases cited; Melrose Operating Co. v. Porter, 256 Mass. 138, 139, 140. In Kramer v. Cook, 7 Gray, 550, 552, where the term of the lease was for three years and “at the election of . . . [the lessee], for the further term of two years next after said term of three years” but at an increased rental, the court held that the election of the lessee to hold for the additional term at the increased rent could be inferred from the continuing to occupy the premises and paying rent for two quarters at the increased rate, without proof of any formal election or notice to the lessor at the time of the expiration of the first term. Since the option provided for in the lease in the present case was for an extension of the lease it follows from what has been said that no proof of any formal election or notice to the demandant of the tenant’s intention to exercise the option was required.
The demandant argues, however, that such cases as the Kramer case and Kimball v. Cross, 136 Mass. 300, are distinguishable from the present case, since there the respective lessees held for a certain time at a stipulated rental with an option for a further term at an increased rental, and the lessees not only held over but also paid the increased rental, which was accepted without reservation by the landlord, whereas in the present case the demandant did
-r, a? ^ Decision affirmed.