Elkins National Bank v. Nefflen , 118 W. Va. 29 ( 1936 )

This is an action of unlawful detainer. The tenant, who had held over after the expiration of his lease, attacks a judgment of ouster on the theory that his tenancy was on the basis of a six months' term, entitling him to three months' notice to vacate, whereas he was given only one month's notice.

Sometime before the expiration date (July 1, 1933) of a three-year lease, the tenant notified the plaintiff bank, his landlord, by letter, that he would not be able to retain possession of the property at the stipulated rental after the expiration date, but that if the landlord would agree to a considerable reduction of rent, on a monthly basis, without a yearly lease, he would be glad to consider the proposition. The landlord, through its conservator, on June 15, 1933, wrote the tenant, acknowledging receipt of the latter's communication, and stating:

"We have discussed this matter in person several times and on yesterday we agreed that the rental should be $60.00 per month for a period of six months, with an option to you to extend it for another six months at the same rate per month; the above arrangement is conditioned upon the definite understanding, however, that while I am at present in position to make a rent arrangement with you, I can only express to you an opinion that you will not be disturbed in your tenancy by a change of my status with the Bank, if it occurs during the period of six months, and that I can give you no assurance that you will be able to extend the rent arrangement for an additional six months if there is a change in my status with the Bank."

The lessee, in accordance with a request contained in the foregoing letter, entered a notation at the foot of a copy thereof, furnished for the purpose, that he agreed to the "foregoing arrangement to become effective July 1, 1933, subject to the conditions above stated." The lessee, on July 1, 1933, and the first of every month thereafter, up to and including May 1, 1935, tendered, and the landlord accepted, the $60.00 rental. On April 29, 1935, the landlord gave the tenant written notice to vacate at the expiration of one calendar month from May 1, 1935, and on June 1, 1935, and thereafter has refused the tendered monthly rentals.

Except for a possible change in the control of the bank within the initial six months' period, the lease was for all practical purposes, at the tenant's option, a one year's lease, terminating July 1, 1934. The holding over, therefore, began July 1, 1934, and has continued since that time.

The authorities all recognize that the nature of the lease and the wording thereof, have a bearing on whether the holding over is from year to year, or month to month. "The controlling element in determining this question is the nature of the rent reserved or paid. If a yearly rent is reserved or paid, it is then generally considered as a tenancy from year to year, even though the payments are made in installments such as quarterly or monthly; if, however, the rent is not a yearly rent, but is for a lesser period, such as a monthly rent, then the tenancy is deemed to be from month to month, irrespective of the length of time it may in fact exist." 16 Rawle C. L. 616. The tenant stresses the fact that the lease is for a six months' period, with right to extend for an additional term; the landlord, calls attention to the absence of mention of a yearly or semi-annual rent.

In Kaufman v. Mastin, 66 W. Va. 99, 66 S.E. 92, 25 L.R.A. (N.S.) 855, the pertinent part of the lease, which involved property to be used as a drug store, provided: "This lease is to continue for one year from the first day of May, 1904. The rent to be paid for said room above described is $50.00 per month, payable at the last of each month respectively." In that case, it was held that: "A tenant's holding over and paying monthly rent beyond the term of a lease for a year, relating to urban premises, in which lease rent is reserved by the month and is payable at monthly periods, does not, alone, imply a renewal by the year. A renewal of the tenancy by the month is hereby implied."

While it is true that the foregoing case is based primarily upon White v. Sohn, 65 W. Va. 409, 64 S.E. 442, in which the lease contained a clause that "this tenancy is not to be a tenancy from year to year," yet the authorities cited and discussed in White v. Sohn, supra, amply support the holding in Kaufman v. Mastin, supra. In other words, the position taken by this Court in the last-mentioned case is based on substantial authority.

The fact that the property involved was urban and used for store purposes was not inconsistent with the implication of month to month tenancy raised by the nature of the rent reserved in the lease. Backus v. Sternberg, 59 Minn. 403,61 N.W. 335; 10 Am. Eng. Ency. Law, 201. We do not see wherein the option to extend for an additional six months alters the situation. The excerpt from the letter of the conservator to the tenant, heretofore quoted, shows that the term was only for six months, doubt being expressed therein, on account of the fact that the bank was in the hands of a conservator, as to the option to extend for a like period. In any event, if the option was taken advantage of, which we assume was the case, it was at "the same rate per month," and not on the basis of rent for six months or a year.

In view of our construction of the lease of June 15, 1933, it is clear that the tenant was given proper notice, in accordance with the provisions of Code 1931, 37-6-5, and the landlord was entitled to invoke the aid of a court of law to have him ousted from the premises. The judgment of the circuit court of Randolph county is therefore affirmed.

Affirmed.