Gibbs Realty & Inv. Corp. v. Carvel Stores Realty Corp.
| Decision Date | 06 February 1967 |
| Citation | 351 Mass. 684,223 N.E.2d 534 |
| Parties | GIBBS REALTY AND INVESTMENT CORPORATION v. CARVEL STORES REALTY CORPORATION et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John T. Ronan, Salem, for defendants.
Gary T. Gilbert, Boston, for plaintiff.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.
In this proceeding under G.L. c. 231A the judge ruled that an 'option * * * to renew' at an advance in rent contained in a ten year lease of November 18, 1953, from the plaintiff (Gibbs) to Carvel Stores Realty Corporation (Carvel) was an option to extend. The final decree accordingly established that the assignees of Carvel, who had exercised the option by giving the required notice, were entitled to continued possession under the lease notwithstanding that no instrument of renewal or extension had been executed.
The ruling was right. The lease provided: 'Option is hereby given to the Lessee to renew this lease for an additional period of five (5) years * * * on condition that the Lessee pay the annual rental of Twenty-Four Hundred ($2400.00) Dollars, in equal monthly installments of Two Hundred ($200.00) Dollars on the 1st day of the month for such renewal period, and further on condition that the Lessee notify the Lessor herein by registered mail of the exercise of the said option, * * * at least three months prior to the expiration of the original term demisted herein, and further provided that all the terms, covenants, conditions and agreements of this lease shall remain in full force and effect during the renewal term period mentioned in said option' (emphasis supplied).
The last clause of the option provision shows that the parties did not contemplate the execution of a new instrument. The plaintiff relies on the cases holding that the grant of an option, privilege or right of renewal contemplates a new agreement executed by both parties, so that the term of the lease is not extended by the lessee's act in giving notice of the exercise of the option. See O'Brien v. Hurley, 325 Mass. 249, 251--252, 90 N.E.2d 335; O'Brien v. Hurley, 331 Mass. 172, 175--176, 117 N.E.2d 922, and cases cited in each opinion. The basis for the continued application of the tenuous distinction between 'renew' and 'extend' has been that the 'words 'renew' and 'renewal' in a lease have come to have a settled meaning in this Commonwealth.' 325 Mass. 249, 251, 90 N.E.2d 335, 336. But here the parties did more than use words that imported 'the giving (of) a new lease like the old one.' Cunningham v. Pattee, 99 Mass. 248, 252. They expressly agreed that all the provisions of the original lease 'shall remain in full force and effect,' thus giving a different meaning to 'renew' from that which, under the O'brien and earlier cases, would be the meaning of the word if not qualified. See Mutual Paper Co. v. Hoague-Sprague Corp., 297 Mass. 294, 299--300, 300, 8 N.E.2d 802, 807 (...
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...871 (1959); Hannan v. Enterprise publishing Co., 341 Mass. 363, 365, 169 N.E.2d 894 (1960). See Gibbs Realty & Inv. Corp. v. Carvel Stores Realty Corp., 351 Mass. 684, 686, 223 N.E.2d 534 (1967). Further, in the circumstances, we deem it appropriate to afford Haverhill Manor an opportunity ......
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