Seven Fifty Main Street Associates Ltd. Partnership v. Spector

• Citation: 497 A.2d 96,5 Conn.App. 170
• Decision Date: 03 September 1985
• Docket Number: No. 2178,2178
• Court: Connecticut Court of Appeals
• Parties: SEVEN FIFTY MAIN STREET ASSOCIATES LIMITED PARTNERSHIP v. Howard SPECTOR.

Page 96

497 A.2d 96

5 Conn.App. 170

SEVEN FIFTY MAIN STREET ASSOCIATES LIMITED PARTNERSHIP v. Howard SPECTOR.

No. 2178.

Appellate Court of Connecticut.

Argued May 11, 1985.

Decided Sept. 3, 1985.

Barry D. Greene, Hartford, with whom were Glenn T. Terk, Hartford, and, on brief, Marvin S. Bloom, Hartford, for appellant (defendant).

David M. Roth, West Hartford, for appellee (plaintiff).

Before DUPONT, C.P.J., and HULL and LANDAU, JJ.

LANDAU, Judge.

The plaintiff, Seven Fifty Main Street Associates Limited Partnership, brought a summary process action against the defendant, Howard Spector, doing business as Gilbert Lane Personnel Service, also known as Gilbert Lane Personnel Agency, Inc., to recover possession of commercial premises. The lease governing the parties was for a term of sixty months, running from July 1, 1977, to June 30, 1982. The plaintiff served a notice to quit upon the defendant on or about July 1, 1982, and then instituted a summary process action, claiming that the tenancy of the defendant had terminated by lapse of time upon the expiration of the written lease. By way of special defenses, the defendant contended that the lease had been extended or, alternatively, that equitable considerations should permit an extension or renewal of the lease.

The trial court made the following findings: That paragraph thirty of the lease, which provided that the "[t]enant shall have the right to renew this lease for one additional (5)-five year period at the same rate," was a covenant to renew rather than an agreement to extend the lease, and, as such, required an affirmative act by the defendant to exercise his right to renew; that actions taken by the defendant had not effectively renewed the lease; and that equitable considerations did not dictate a judgment in the defendant's favor. The defendant appeals ¹ from the judgment of possession rendered by the trial court.

"The question of whether a lease grants a covenant to renew or an agreement to extend is a question of intent.... If the language of the lease is clear and definite, however, the intention of the parties must be gathered from the instrument itself." Nowesco, Inc. v. Community Petroleum Products, Inc., 38 Conn.Sup. 585, 587-88, 456 A.2d 340 (1982). Although paragraph thirty of the lease speaks in terms of a "right to renew," such language, in and of itself, is not conclusive. Blanck v. Kimland Realty Co., 122 Conn. 317, 319, 189 A. 176 (1937); Johnson v. Mary Oliver Candy Shops, Inc., 116 Conn. 86, 89, 163 A. 606 (1933); Ackerman v. Loforese, 111 Conn. 700, 704, 151 A. 159 (1930). Paragraph twenty of the lease, however, provides in pertinent part that "[i]n the event that the Tenant shall remain in the demised premises after the expiration of the term of this lease without having executed a new written lease with the Landlord, such holding over shall not constitute a renewal or extension of this lease."

The lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. Central New Haven Development Corporation v. LaCrepe, Inc., 177 Conn. 212, 214, 413 A.2d 840 (1979). Under paragraph twenty, a mere holding over would not constitute an extension of the lease.

The lower court did not err in finding that paragraph thirty was a covenant to renew rather than an agreement to extend the lease. As such, an affirmative act on the part of the defendant was necessary to exercise his right to renew. Nowesco, Inc. v. Community Petroleum Products, Inc., supra, 38 Conn.Sup., 587, 456 A.2d 340.

The defendant also claims as error the trial court's conclusion that he had failed to renew the lease. The trial court found that the defendant orally notified the plaintiff in late December, 1979, or early January, 1980, of his intention to renew the lease. The trial court further found that the defendant mailed a letter to the plaintiff on December 16, 1981, by ordinary mail, informing the plaintiff that he would exercise his right to renew, but that the plaintiff never received the letter. In addition, the trial court found that the defendant had telephoned the plaintiff's building manager on June 30, 1982, after receiving a notice to quit, and had informed her of his desire to renew the lease.

Issues of fact are solely within the province of the trier of fact to decide. Maresca v. Allen, 181 Conn. 521, 523, 436 A.2d 14 (1980). This court will not disturb the factual findings of the trial court as long as the evidence supports those findings.

Paragraph eighteen of the lease provided that "[a]ll notices and demands, legal or otherwise, incidental to this lease, or the occupation of the demised premises, shall be in writing." Paragraph eighteen also provided that "[n]otices from the Tenant to the Landlord shall be sent by registered mail or delivered to the Landlord at the place herein before designated for the payment of rent, or to such party or place as the Landlord may from time to time designate in writing." The trial court held that paragraphs eighteen and thirty of the lease required the defendant to give written notice to the landlord prior to the expiration date of the lease in order effectively to renew it, and that the written notice, if sent by mail, was required to be sent by registered mail. The trial court further found that the actions taken by the defendants did not satisfy the requirements of paragraph eighteen. We agree.

"It is always competent for parties to contract as to how notice shall be given...." Westmoreland v. General Accident Fire & Life Assurance Corporation, Ltd., 144 Conn. 265, 270, 129 A.2d 623 (1957). The parties agreed, in paragraph eighteen of the lease, that notices and demands incidental to the lease should be in writing, and, if mailed, such notices and demands should be sent...