Schaeffer v. Bilger

• Decision Date: 08 February 1946
• Docket Number: 72.
• Parties: SCHAEFFER et al. v. BILGER.
• Court: Maryland Court of Appeals

45 A.2d 775

186 Md. 1

SCHAEFFER et al. v. BILGER.

No. 72.

Court of Appeals of Maryland

February 8, 1946

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Suit by Paul Bilger against Edna M. Schaeffer and another for specific performance of an option in a lease authorizing plaintiff as tenant to purchase the leased property for designated sum. From a decree for the plaintiff, defendants appeal.

Affirmed.

Nathan Patz, of Baltimore, for appellants.

Nathan Hamburger, of Baltimore (H. Paul Rome and Rome, Rome & Hamburger, all of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, GRASON, and HENDERSON, JJ.

MARBURY Chief Judge.

This case deals with the right of a tenant to exercise an option contained in a written lease, to purchase the leased property after the expiration of the term created by such lease but during an extension of that term, made by the tenant under a right given him in the lease. The original and only lease was made September 29, 1936 by the appellants as landlords to the appellee as tenant. The property demised was 1830 East Monument Street, in the City of Baltimore, and the term of the lease was from the 10th day of October, 1936 to the 9th day of October, 1939. The rental was $80 a month for the first twelve months, $90 a month for the second twelve months and $100 a month for the third twelve months. The lease contained most of the usual covenants in documents of that nature, with a permission to sublet and a provision that alterations or repairs should be done by the tenant at his own cost and expense. After these covenants, appeared the following: 'And it is further agreed that the said Tenant may extend the term hereby created for another term of five years at the annual rental of Fifteen Hundred Dollars ($1500.00), payable monthly in advance, subject to the aforegoing covenants and conditions otherwise herein contained, upon giving to the Landlords at least three months' written notice prior to the expiration of the term hereby created to terminate on the 9th day of October 1939; such notice in writing to be given to the said Landlords at least three full months prior to such termination date.' Then in a subsequent paragraph the option to purchase is given in the following words: 'And it is further agreed that prior to default therein on the part of the Tenant, and at any time during the period of the term hereby created upon giving sixty days previous notice to the Landlords, the Tenant may purchase the said premises known as No. 1830 East Monument Street Baltimore, Maryland, as same now exists, subject to an annual ground rent of $40.00, for the sum of Eleven Thousand Five Hundred ($11,500.00) cash; it being further agreed and understood that any time during the operative period of this option, the Landlords may, upon giving to the Tenant written notice that they will sell the said premises at the expiration of thirty days to another prospective purchaser enter into an agreement of sale therefor, unless within that period the Tenant shall give notice of his intention to exercise the aforegoing option upon the aforementioned terms; it being further understood and agreed that if said thirty days' written notice from the Landlords to the Tenant shall expire without the exercise by said Tenant within that period of the aforementioned option, then upon payment to the Tenant of the sum of Two Hundred Dollars ($200.00) the option hereby conferred upon the Tenant as aforesaid, shall be and become void and of no further effect.'

The appellee entered into possession of the premises and made a number of alterations, additions and permanent improvements for the purpose of rendering the building suitable for his business. These improvements were extensive as is shown by the fact that he excavated the entire lot, with the exception of 15 feet, in order to provide a basement, tore down the entire building between two 4"' walls except for a part of the front and built 13'' walls the entire length of the building from basement to roof on the second floor. The tenant testified that the cost of these alterations and improvements was within $100 of $20,000 and that it took eleven months for him to put the building into condition before he could use it.

On May 8, 1939, well within the period required by the lease, the tenant gave the landlords notice that he desired to renew the lease for the next five years. In the same letter, he requested that the landlords postpone the advance in rental provided in the contract because of business conditions. The landlords agreed that the increase in rental should not be paid for a year, and there was some difficulty in collecting it after that time, although it subsequently was collected.

The new term of five years was due to end on October 9, 1944. On July 26, 1944, appellants' counsel wrote to counsel for appellee stating that landlords were entering into negotiations with two other prospective tenants and notifying him that an offer of further rental made to him was withdrawn, it not having been accepted. This last statement in the letter referred to some negotiations for another lease. Thereupon, on July 29, 1944, counsel for the appellee gave counsel for the appellants sixty days notice that appellee would exercise his option to purchase the property for $11,500, subject to the ground rent. Appellants, replying, denied that the option continued during the extension period and declined to sell the tenant the property under such option. The tenant filed a bill in the Circuit Court No. 2 for specific performance which was answered, testimony was taken, and the chancellor decreed that the appellee was entitled to a conveyance of the property for the sale price mentioned in the lease, and directed the appellants to convey the property upon payment of such price. From this decree the landlords appeal.

The question whether an option to purchase contained in a lease can be exercised by a tenant during an additional term provided for in the lease, has been productive of much difficulty, and has produced many decisions which cannot be reconciled. It seems to be generally agreed that it depends upon the intention of the parties to be gathered from the lease itself. However, many of the decisions turn upon the narrow question whether the lease is to be extended or whether the term is to be extended or whether the words used indicate that a new lease is to be executed. The results are necessarily varied, depending on the method of approach to the problem.

This Court has held, in a case in which the question was whether a lease for six years with the right of renewal for a further term of eight years and with a further right of renewal for ten years, was a lease for twenty-four years, and thereby subject to the right of redemption, that 'the words 'renew' or 'renewal' are not words of art and they have no legal or technical signification.' The Court gave its authorities for the statement, including an earlier case of Flanagin v. Hambleton, 54 Md. 222, 227. It had previously cited a number of other cases and quotations from various text books and compilations. The conclusion was that the lease was a lease for twenty-four years and was, therefore, redeemable, the Court saying, 'It will thus be seen, according to what we believe to be the weight of authority, supported by the stronger reason, that the question of whether the use of the word 'renewal' is to be taken to require the execution of a new contract, or whether it is to be construed as meaning an extension of the original term, is dependent upon the...