Ellis v. Brookwood Park Venture

• Decision Date: 11 February 1982
• Docket Number: No. 62971,62971
• Citation: 288 S.E.2d 308,161 Ga.App. 242
• Parties: ELLIS et al. v. BROOKWOOD PARK VENTURE.
• Court: Georgia Court of Appeals

Page 308

288 S.E.2d 308

161 Ga.App. 242

ELLIS et al. v. BROOKWOOD PARK VENTURE.

No. 62971.

Court of Appeals of Georgia.

Feb. 11, 1982.

Donald E. O'Brien, Atlanta, for appellant.

R. Rucker Smith, Russell S. Thomas, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This dispossessory warrant proceeding was brought by plaintiff to evict defendants from an apartment. The plaintiff alleges that the defendant tenants are holding over beyond the term for which the apartment was leased to them. Plaintiff filed its motion for summary judgment and after some discovery the trial court ruled on plaintiff's motion granting summary judgment in favor of plaintiff. Defendants appeal. Held :

The issues involve the construction of a lease contract between plaintiff's predecessor and defendants which provided for a three year term but also included a special stipulation that "Management will allow Resident to renew lease at expiration date for an additional two years." The trial court interpreted this provision as implicitly carrying with it a requirement that notice of intent to renew be given to management. The notice requirement as determined by the trial court would be controlled by that provision (paragraph 19) of the lease which required that any notice required to be given under the lease shall be in writing. The evidence shows that the defendants provided no written notice of intention to renew the lease. Therefore, the trial court determined that the lease had expired at the end of the term of the original three years.

An implicit contractual provision exists only where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it. See Alice v. Robett Manufacturing Company, 328 F.Supp. 1377.

In Hamby & Toomer v. Georgia Iron & Coal Company, 127 Ga. 792, 802, 56 S.E. 1033. The Supreme Court faced with a similar issued stated, "It becomes necessary to determine the question of whether this stipulation is such as to provide for a renewal of the lease, or a mere extension of the time first stipulated in the lease. The consequences which would flow from the construction that it provides for a renewal would be different from those which would flow from construing it as providing for a mere extension. If the stipulation contemplates a new contract at the expiration of the [term], then it would be a renewal, and the execution of a new lease would be indispensable. In this contingency it would be incumbent upon the lessee to notify the lessor, before the term expired, that he had exercised his option to take a new lease. On the other hand, if the stipulation is to be construed as merely an extension of the time under the old lease, and no new agreement was contemplated, then, no notice being expressly provided for in the contract, if the lessee merely remained in...