Schmitt v. Felix

• Decision Date: 18 February 1958
• Docket Number: No. 17579,17579
• Court: California Court of Appeals Court of Appeals
• Parties: C. E. SCHMITT and C. E. Schmitt, Executor of the Last Will and Testament of Edith M. Schmitt, deceased, Plaintiff and Respondent, v. Edward I. FELIX, Defendant, Maurice C. Cohn, Sam C. Zipkin, Defendants and Appellants.

Page 473

321 P.2d 473

157 Cal.App.2d 642

C. E. SCHMITT and C. E. Schmitt, Executor of the Last Will and Testament of Edith M. Schmitt, deceased, Plaintiff and Respondent, v. Edward I. FELIX, Defendant Maurice C. Cohn, Sam C. Zipkin, Defendants and Appellants.

No. 17579.

District Court of Appeal, First District, Division 1, California.

Feb. 18, 1958.

Charles M. Stark, Paul W. McComish, San Francisco, for appellant Cohn.

Rhein, Dienstag & Levin, Jay Jackson, San Francisco, for appellant Zipkin.

Samuel M. Samter, Bertrand A. Bley, San Francisco, for respondents.

BRAY, Justice.

Plaintiff recovered judgment of $4,208.27 against all defendants. Defendants Cohn and Zipkin appeal.

Questions Presented.

1. Does holding over by one lessee bind other lessees not in possession (a) as to an extended term of the lease, and (b) as to a month to month tenancy thereafter.

2. Effect of notices of termination of tenancy.

Stipulated Facts.

Plaintiff C. E. Schmitt and his wife, Edith M. Schmitt, entered into a lease with the three defendants for a period of one year ending March 31, 1953, rental $475 per month. The lease granted lessees an option for an additional year after March 31, 1953, on the same terms and conditions. Defendant Felix remained in actual physical possession and occupied the premises through January 19, 1955. Defendant Cohn at no time was in physical possession or occupied the premises. Defendant Zipkin was not in physical possession or occupancy of the premises after September, 1953. The rent was paid to May 1, 1954. The unpaid rent was $4,208.27, the amount of the judgment.

No notice of exercise of the option was given. However, defendants Felix and Zipkin remained in possession at the end of the original term, Felix for the entire term provided by the option, Zipkin for the first six months thereof. The rental paid was $475 per month during the extended period and $500 thereafter as provided in the holding over provision hereafter quoted.

1. (a) The Extended Term.

Although the rental was paid in full for the extended term, it nevertheless becomes necessary to consider defendant Cohn's contention that because at no time and particularly at the end of the original term was he physically in possession of the leased premises, his liability terminated at the end of the year and he is not bound by the fact that his colessees continued in possession.

The lease provided: 'The Lessees are granted an option for an additional term of one (1) year after March 31st 1953 on the same terms and conditions herein set forth.' A written exercise of an option of this kind is not necessary. Payment by the tenant of the rental provided in the lease and its acceptance by the landlord constitutes an exercise of the option. Cafe Apollo Co. v. Anselm, 47 Cal.App.2d 151, 155, 117 P.2d 691. Whether a colessee out of possession is bound by the action of his colessees in exercising such an option has not clearly been decided in this state. There are authorities elsewhere holding that the colessee is not bound. See Foster v. Stewart, 1921, 196 App.Div. 814, 188 N.Y.S. 151 which expressly refused to follow Fronty v. Wood, 2 Hill, S.C., 367, which held to the contrary; Tweedie v. P. E. Olson Hardware & Furniture Co., 1905, 96 Minn. 238, 104 N.W. 895 to that effect, and Kleros Building Corp. v. Battaglia, 1952, 348 Ill.App. 445, 109 N.E.2d 221 and Howell v. Behler, 1896, 41 W.Va. 610, 24 S.E. 646 holding that the lessor is not bound by the exercise of an option to renew by one colessee only. However, the theory of these cases seems to be that on the exercise of the option to renew a new agreement came into existence. In California, however, the exercise of the option is not considered to make a new agreement but merely the extension of the original term of the lease. '* * * where a lease gives an option to the lessee 'to renew' the lease for a specified term without requiring the execution of a new lease, the extension is a continuation of the tenancy under the original lease. [Citations.]' Knox v. Wolfe, 1946, 73 Cal.App.2d 494, 502, 167 P.2d 3, 8; see also Howell v. City of Hamburg Co., 1913, 165 Cal. 172, 177, 131 P. 130.

'A colessee of real property is a tenant in common of the leasehold interest. The possession of one cotenant is possession for all. [Citations.]' Barrow v. Simon, 2 Cal.App.2d 500, 503, 38 P.2d 197, 198. See also Reynolds v. McEwen, 111 Cal.App.2d 540, 544, 244 P.2d 961, dealing with the defendant McEwen's contention that under a new lease given in cancellation of the old one, he never was in possession of all the property leased. There the court said (111 Cal.App.2d at page 545, 244 P.2d at page 965): '* * * it is immaterial whether Stover and McEwen be considered as colessees, in which case Stover's possession, whether actual or constructive, was possession for both [citations] or as partners * * *.'

Therefore, as an option to renew may be exercised by a tenant remaining in possession and paying the rent, as such renewal is merely an extension of the original term and is not a new agreement, and as the possession of one colessee is that of the other colessee, defendant Cohn was constructively in possession at the time of the extension of the lease and was therefore bound by his colessees' acts.

(b) Month to Month Tenancy.

At the time of the termination of the extended term neither defendants Cohn nor Zipkin were in physical possession.

The holding over clause provides: 'Any holding over after the expiration of the said term, including that covered by the option, with the consent of Lessor, shall be construed to be a tenancy from month to month, at a rental of Five Hundred ($500.00) Dollars a month, and shall otherwise be on the terms and conditions herein specified, so far as applicable.'

For the reasons above mentioned defendants Cohn and Zipkin were constructively in possession at the end of the extended term of the lease and therefore they would be liable for the rent during the month to month tenancy, unless they terminated their respective tenancies. As in the case of the exercise of the option to renew, a holding over at the end of the term of the lease as extended did not create a new agreement but merely an extension of the original term. 'When a tenant under a lease remains in possession of the leased premises with the permission of the lessor from month [to month] after the term expires, a new tenancy is not created but the original tenancy is deemed to have been extended [citation] * * *.' Knox v. Wolfe, supra, 73 Cal.App.2d at page 502, 167 P.2d at page 8.

It is true as contended by defendants that liability for rent arises in one of two ways, either from a contractual agreement with the property owner or by actual occupancy of the premises with the owner's consent, and that the first provides 'privity of contract,' the other provides 'privity of estate' (see Samuels v. Ottinger, 169 Cal. 209, 146 P. 638, 639; Ross v. City of Long Beach, 24 Cal.2d 258, 263, 148 P.2d 649), and that possession is essential to the relation of landlord and tenant (see Caldwell v. Gem Packing Co., 52 Cal.App.2d 80, 84, 125 P.2d 901), and that...