Ackerman v. Loforese

• Decision Date: 09 July 1930
• Citation: 111 Conn. 700,151 A. 159
• Court: Connecticut Supreme Court
• Parties: ACKERMAN v. LOFORESE et al.

151 A. 159

111 Conn. 700

ACKERMAN v. LOFORESE et al.

Supreme Court of Errors of Connecticut.

July 9, 1930

Appeal from Superior Court, Fairfield County; Edward M. Yeomans Judge.

Action by Lewis J. Ackerman against Thomas Loforese and others, for specific performance of an option to purchase real estate or other equitable relief or damages. Judgment for defendants and plaintiff appeals.

Error and new trial ordered.

On August 11, 1919, Angelo Roina was the owner of certain premises in Greenwich, which on that date he leased to the plaintiff for five years from September 15, 1919, at an annual rent of $2,400, payable $200 monthly. The lease contained the following provisions relative to renewal and option of purchase: " It is further agreed that this lease may be renewed at the option of the party of the second part for a further period of five years after the expiration hereof, upon the same terms and conditions as in the lease contained. It is further agreed that the party of the second part may have the option to purchase the premises hereby leased at any time during the term of this lease or any renewal thereof for the sum of twenty-six thousand five hundred (26,500) dollars."

On or about September 23, 1920, Roina and the plaintiff executed a supplemental agreement whereby the rent was increased beginning September 15, 1920, from $200 per month to $215, all of the other provisions of the lease being ratified and confirmed. Both the lease and the agreement were recorded.

The plaintiff entered into possession about September 15, 1919, and during the original five-year period paid rent as provided for in the lease, and performed all the other terms and conditions thereof on his part. On or about August 12, 1924, he notified Angelo Roina as follows: " I hereby notify you that I renew said lease for a further period of five years upon the same terms and conditions as in the lease contained. Should you desire a renewal lease executed in accordance with the option in said lease, I shall be prepared to sign the same, otherwise this letter may be considered by you as obligating me to such renewal." Correspondence ensued between the attorneys for the lessor and lessee, the nature of which will be stated hereafter. No new lease was executed. The plaintiff, by a subtenant, remained in possession, and caused to be forwarded to Roina, on or about September 15th, October 15th, and November 15th, 1924, checks for $215 each, but Roina refused to accept them. Shortly after November 15, 1924, the plaintiff tendered Roina a check for $645, being the three months rent, which he accepted and cashed, and thereafter, until September 15, 1929, the plaintiff paid, and Roina and his successors as record owners accepted, rent at the rate ($215 per month) provided by the original lease as amended.

On or about September 12, 1929, the plaintiff notified the defendants that he claimed under the option to purchase and of his desire to exercise it and tendered them the agreed purchase price, but they have not conveyed or offered to convey the premises to him.

Joseph L. Melvin, of Stamford, for appellant.

Matthew H. Kenealy, Jackson Palmer, C. Milton Fessenden, and Daniel E. Ryan, all of Stamford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HINMAN, J. (after stating the facts as above).

The trial court's conclusion, from the facts found, was that the provision, in the lease of August 11, 1919, that it might be renewed for a further term of five years at the option of the lessee, required the execution and recording of another lease in order to make it binding upon a subsequent purchaser, and that the continued occupancy by the plaintiff after giving notice of election to renew, and the acceptance of rent by the lessor and his successor, did not operate as a renewal but created a tenancy from year to year, only, carrying no option of purchase.

The key question on this appeal is whether that conclusion is sound or, as the appellant contends, the nature of his option under the lease was such as to entitle him to a further term of five years, with all privileges under the lease, without the execution and recording of a new indenture, and that this result was effectuated by the facts as found.

It is the general rule that no new lease is necessary upon exercising an option for the extension of the term of the lease for a further specified period after the expiration of the original term, and many courts apply the same rule in the case of options for renewal. Note, L.R.A. 1916E, pages 1238, 1240; Orr v. Doubleday, Page & Co., 223 N.Y. 334, 340, 119 N.E. 552; Meadow Heights Country Club v. Hinckley, 229 Mich. 291, 201 N.W. 190; Donovan Motor Car Co. v. Niles, 246 Mass. 106, 140 N.E. 304.

" The view has been taken that a lease for a specified term with the privilege of a renewal on the same terms is equivalent, where such privilege is exercised, to a demise for the full period of the two terms, without any necessity for the execution of a new lease, and this would seem to be the view which a court of equity would take in case the right of the lessee under the privilege of renewal is there called in question, as equity regards that as done which ought to be done." 16 R. C. L. p. 889.

A technical difference is frequently recognized, however between the effect of a covenant for renewal and one for extension, especially as to the effect of retention of possession after the original term, it being held that a stipulation for renewal does not, like a covenant to extend, of itself and alone continue the tenancy for the renewal period, but calls for a new lease, a formal extension of the existing lease, or something equivalent thereto, performance by the lessee of everything required of him to entitle him to a new lease, or, at least,...