Sisco v. Rotenberg

• Decision Date: 09 July 1958
• Citation: 104 So.2d 365
• Parties: Beatrice Maud SISCO, Appellant, v. Leo ROTENBERG, Appellee
• Court: Florida Supreme Court

Page 365

104 So.2d 365

Beatrice Maud SISCO, Appellant, v. Leo ROTENBERG, Appellee

Supreme Court of Florida.

July 9, 1958.

Willes & Bittan, Fort Pierce, and Messer & Willis, Tallahassee, for appellant.

T. B. Ellis, Jr., Fort Pierce, Charles B. Adams, West Palm Beach, and Leonard Pepper, Tallahassee, for appellee.

O'CONNELL, Justice.

The principal question involved in this appeal as stated by appellant is as follows:

'When a lease of realty for a specified term of five years also provides that the lessor agrees 'during the tenure of the lease' to sell to the lessee the leased property for a named cash price and also provides that the lessee has the option to renew the lease for a period of five years 'on the same terms and conditions', does the exercise of the option to renew also extend into the extended term the right of the lessee to purchase the leased premises for the price specified?'

Appellant, defendant below, and appellee, plaintiff below, entered into a lease agreement which provided for a basic term of five (5) years. In addition, the last two paragraphs of the lease provided:

'The Lessor agrees, during the tenure of this Lease, to sell to the Lessee, the foregoing described real estate with appurtenances thereto appertaining, for a cash purchase price of Twenty Thousand Dollard ($20,000.00).

'It Is Agreed that the Lessee shall have an option to renew this Lease for a period of five (5) years on the same terms and conditions providing the said Lessee makes this request in writing to the Lessor on or before October 2nd, 1954.'

Plaintiff went into and remained in possession for the five year term. Prior to the expiration of the five year term the plaintiff exercised his option to renew the lease for a period of five years. No new lease was executed, and no different terms were agreed upon. The plaintiff continued in possession of the premises as before.

During the first year of the renewal or extension of the lease, the plaintiff's attorney, on August 26, 1955, wrote a letter to the defendant giving her formal notice that the plaintiff was exercising his option to purchase the property for $20,000 under the provision of the lease dated January 2, 1950. The letter advised that the plaintiff was willing to and offered to perform on his part in conformity with the provisions of the agreement. The letter further stated:

'Mr. Rotenberg further advises that he has previously on August 11, 1955, informed you of his desire to exercise his right to purchase said property, and that you have stated orally to him that you are unwilling to do so. We are instructed to inform you that in the event you refuse to go through with the sale of the said property, such action as may be necessary will be instituted.'

Plaintiff thereafter filed his complaint on October 5, 1955 seeking a decree of specific performance of the option to purchase. Defendant moved to dismiss the complaint on the ground it failed to state a cause of action, which motion was denied.

Defendant's answer admitted the factual allegations of the complaint but denied that the plaintiff 'at any time during the original tenure of said Lease * * * notified the Defendant in writing of his desire to exercise the option granted in said Lease to purchase the real estate therein described for a cash purchase price of $20,000.00.' She admitted that she refused to sell the land on those conditions because the plaintiff failed to exercise the option to purchase during the original tenure and that 'the option to purchase did no extend to the renewal period of said Lease.' Defendant also alleged that the plaintiff 'has failed at any time to tender to this Defendant the amount of $20,000, being the cash purchase price.'

In his final decree, the chancellor stated:

'* * * Defendant contended that, because the plaintiff failed to exercise the option to purchase during the original term of the lease, plaintiff has forfeited his right to purchase.

'The general rule of law is contrary to this position assumed by the defendant. Thus it is stated, 51 C.J.S. Landlord and Tenant § 84, p. 643,

"During the renewed or extended term. Where the lease confers the right to purchase at any time during the term, it is generally held that it may be exercised during an extended or renewed term, acquired under an option in the lease for an extension or renewal on the terms and conditions of the original lease.' * * *

'See also 32 Am.Jur., Sec. 308, pp. 285, 286; annotation 37 A.L.R. commencing page 1245; and 163 A.L.R. p. 706 and also annotation commencing page 711.

'Defendant admits that she received the notice exercising the option to purchase and that she refused to sell the land.

'The defendant further contends that the plaintiff has failed to tender at any time in cash the twenty thousand dollar purchase price, and that such tender was a prerequisite condition.

'Plaintiff insists that, having exercised the option and having offered to perform, he was not required to make a tender in cash when the defendant had refused to go ahead with the sale. Under the circumstances of this case, this Court concurs in this view. See Taylor v. Mathews, 53 Fla. 776, 44 So. 146, Orlando Realty Board Bldg. Corporation v. Hilpert, 93 Fla. 954, 113 So. 100; and Martin v. Albee, 93 Fla. 941, 113 So. 415. Nor does equity require one to do useless or futile acts to obtain relief to which one is otherwise entitled. Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729.

'So the case here is one where there is an unambiguous option to renew provision and option to purchase provision contained in the lease agreement. The option to renew expressly provides without exception or qualification that the extended period shall be on the same terms and conditions as under the original term. The option to purchase was one of the specific parts of the lease agreement. The renewal provision has been exercised and plaintiff is in possession under it. There is the refusal on the part of the defendant to perform, although plaintiff gave notice as required, exercised his option to purchase, and offered to peform. An actual cash tender would have been futile; there was nothing else the plaintiff could do; the only alternative plaintiff had was the bringing of the suit. There was no delay; suit was instituted on October 5, 1955, a little over a month after notice exercising option to purchase. The option to purchase was exercised in the first year of the renewal period.

'When the case is considered in its entirety, under the evidence, plaintiff has met the burden of proof required of cases of this kind and is therefore entitled to specific performance. * * *' In addition to the question above stated defendant also contends that the option to purchase was not properly exercised because the plaintiff never actually tendered the purchase price.

Defendant argues that it is clear and undisputed that the original tenure prescribed in the lease expired on January 2, 1955, some seven months prior to plaintiff's purported exercise of the option to purchase. She acknowledges that authority for the chancellor's ruling may be found, but asserts that in some jurisdictions a contrary rule exists, and that since this Court has never ruled thereon it is free to adopt an interpretation calling for strict construction of options to purchase real estate for a fixed sum. Defendant asserts that this Court's ruling should be that if one is to gain such an advantage over a period as long as ten years, as in this case, he should be held under a duty to cause written instruments intended to have such an effect contain language clearly spelling out that intent.

In support of this assertion, defendant argues that, like all written contracts, the lease should bear the construction which accords with the intent expressed by the parties. She says that the conditions and circumstances surrounding the parties and the objects to be obtained should be considered and that where a provision is in any way uncertain or ambiguous it should be construed against him for whose benefit the provision was inserted.

Defendant asserts, with no citation of supporting authority, that the lease was in effect two separate contracts between the parties, one a demise of the premises for five years, subject to being extended for five years, and the other a contract granting an option for a limited time to purchase the realty for a stated price.

Defendant says that in substance the chancellor has held that the plaintiff's exercise of his option to renew brought about a new contract containing the identical provisions of the old contract, and that thus it would seem to afford him the right to renew the lease for successive five year periods indefinitely. This argument of course must fail, since most courts have taken the view a covenant to renew is satisfied by one renewal thereof, dut to their disfavor of perpetuities and perpetual leases. Annotation 1952, 31 A.L.R.2d 607; 4 Thompson on Real Property, Sec. 1263 (perm. ed.); 51 C.J.S. Landlord & Tenant § 61; 32 Am.jur., Landlord & Tenant, Sec. 968.

Defendant argues that the authorities cited by the chancellor are conflicting and are in accord only on the one point that the intention of the parties to be gathered from the lease itself is the determining factor. Consequently, defendant calls attention to what she labels the peculiarities of Florida real estate transactions and the circumstances of the time in which the lease was initially executed. She refers to the steady increase of land values in this state and argues that because of that factor she surely did not intend to be bound by the terms of her lease to a fixed price over a large number of years. We note that the record is silent as to what the market value of the subject realty was, or is, and it is our opinion that, as contended by the plaintiff, the intention of the parties is to be obtained from the unambiguous terms of the...