Landlord and Tenant, Construction of lease, Conditional limitation of lease, Termination of tenancy. Covenant. Summary Process.
A lease of land, after stating that the demise was for a term of ten years, contained the following: "If the lessor at any time after the expiration of the first five years of this lease desires to sell the land, this lease may be terminated on thirty days' notice in writing of the lessor's determination and the payment by the said lessor to the lessee of the sum of $400 as liquidated damages for the termination of said lease, and upon such termination the lessee shall remove any building within the said thirty days and quietly and peaceably yield up the possession of the premises upon said payment of $400. This lease shall bind the parties and their executors, administrators and assigns." Held, that the foregoing provisions constituted a conditional limitation of the lease, and not a mere covenant.
At the trial of summary proceedings for the possession of certain real estate under R.L.c. 181, it appeared that the defendant claimed the right to retain possession under a lease of the land, which was for a term of ten years and contained the following: "If the lessor at any time after the expiration of the first five years of this lease desires to sell the land, this lease may be terminated on thirty days' notice in writing of the lessor's determination and the payment by the said lessor to the lessee of the sum of $400 as liquidated damages for the termination of said lease." There was evidence which warranted findings that, after the expiration of the first five years of the term of the lease, the plaintiff had tendered to the defendant $400 and had given to him thirty days' notice in writing of his desire to sell the land, and that at the time of giving the notice the plaintiff had such desire, although he had not placed the property in the hands of any real estate broker, had not advertised it for sale and had made no agreement of sale. Held, that, within the meaning of the above quoted portion of the lease, in order to constitute a desire to sell the land it was not necessary that the plaintiff should enter into a binding agreement to convey it, nor in order to terminate the lease was it necessary that the plaintiff should make an entry upon the premises.
The termination of a lease of land in any manner gives the landlord, if he has retained his title, a right to recover possession of the land by summary proceedings under R.L.c. 181, § 1.
KNOWLTON, C.J.
This is an action of ejectment brought under the R.L.c. 181, § 1. The rights of the parties depend upon the construction of a lease made by the plaintiff's predecessor in title to the predecessor in title of the defendant. The lease contains the following provision: "If the lessor at any time after the expiration of the first five years of this lease desires to sell the land, this lease may be terminated on thirty days' notice in writing of the lessor's determination and the payment by the said lessor to the lessee of the sum of $400 as liquidated damages for the termination of said lease, and upon such termination the lessee shall remove any building within the said thirty days and quietly and peaceably yield up the possession of the premises upon said payment of $400." By its own terms, the lease was to end on the happening of the contingencies mentioned therein, namely, the existence of a desire on the part of the lessor to sell the land and thirty days' notice in writing of this determination and the payment by him of $400 as liquidated damages for the termination of the lease. This was a conditional limitation of the lease, and not a mere covenant. Fifty Associates v. Howland, 11 Met. 99. Shaw v. Appleton, 161 Mass. 313. Munigle v. Boston, 3 Allen, 230, 232. O'Connor v. Daily, 109 Mass. 235. All the facts were proved that were necessary to show the termination of the lease by its own limitation.
In order to constitute a desire to sell or convey, within the meaning of the language of the lease, it was not necessary that the plaintiff should enter into a binding agreement to convey. Nor was an entry upon the land by the plaintiff necessary. The desire to sell or convey that was proved, the notice in writing that was given and the tender of the $400 in money, were all that was required. There was no error in the refusal to give the rulings requested on these points. Knowles v. Hull, 99 Mass. 562, 564. De Friest v. Bradley, 192 Mass. 346.
By the express terms of the statute a termination of a lease in any manner gives the landlord a right to recover in this form of proceeding. R.L.c. 181, § 1.
Exceptions overruled.