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21-P-1054 Appeals Court

SOURCING UNLIMITED, INC.1 vs. CUMMINGS PROPERTIES, LLC.

No. 21-P-1054.

Essex. November 3, 2022. - June 7, 2023.

Present: Neyman, Desmond, & Grant, JJ.

Contract, Lease of real estate, Construction of contract, 

Option. Real Property, Lease, Option. Landlord and 

Tenant, Renewal of lease. Notice, Timeliness. Electronic 

Mail.

Civil action commenced in the Superior Court Department on 

January 24, 2017. 

The case was heard by Janice W. Howe, J., on motions for 

summary judgment, and entry of separate and final judgment was 

ordered by her.

Jonathan D.H. Lamb for the defendant.

Orestes G. Brown for the plaintiff.

NEYMAN, J. We consider whether electronic mail (e-mail)

communications from a tenant to its landlord constituted 

effective notice to invoke a nonrenewal option to prevent 

1 Doing business as Jumpsource.
2

automatic five-year renewal of a commercial lease. Although the 

"notice" provision in the lease prohibited electronic notice, we 

nonetheless hold that the e-mail communications constituted 

effective notice where (1) it is undisputed that the landlord 

received timely and unequivocal written notice of the tenant's 

decision not to extend the lease; (2) the nonconformity in the 

method of delivery of the notice neither was consequential nor 

contravened the crux of the option provision; and (3) the option 

provision at issue was not exclusive to the tenant but was a 

mutual option that could be exercised by either party. Thus, we 

affirm. 

Background. 1. The lease. On or about April 14, 2010, 

the plaintiff-tenant, Sourcing Unlimited, Inc., doing business 

as Jumpsource (Jumpsource), and the defendant-landlord, Cummings 

Properties, LLC (Cummings), executed a commercial lease for 

office space in Beverly. The lease was extended by agreement 

through November 30, 2016. Section 30 of the lease contained an 

automatic extension provision stating as follows: 

"AUTOMATIC FIVE-YEAR EXTENSIONS. This lease, including all

terms, conditions, escalations, etc. shall be automatically 

extended for additional successive periods of five years 

each unless LESSOR or LESSEE serves written notice, either 

party to the other, of either party's option not to so 

extend this lease. The time for serving such written 

notice shall be not more than 12 months or less than six 

months prior to the expiration of the then current lease 

term. Time is of the essence." 
3

Section 21 of the lease contained a general notice provision 

that provided as follows:

"NOTICE. . . . Any notice from LESSEE to LESSOR under this 

lease shall be given in writing and shall be deemed duly 

served only when served by constable, or delivered to 

LESSOR by certified or registered mail, return receipt 

requested, postage prepaid, or by recognized courier 

service with a receipt therefor, addressed to LESSOR at 

[street address] or to the last address designated by 

LESSOR. No oral, facsimile or electronic notice shall have 

any force or effect. Time is of the essence in the service 

or any notice." 

The parties agree that to exercise its nonrenewal option under 

section 30 -- thereby preventing the lease term from 

automatically extending for an additional five-year period --

Jumpsource had to provide written notice to Cummings between 

December 1, 2015, and May 30, 2016 (i.e., "not more than 12 

months or less than six months prior to the expiration of the 

then current lease term"). 

2. The e-mail communications. In December of 2015, and 

January of 2016, Jumpsource and Cummings discussed the 

possibility of Jumpsource relocating from its then current 

office space to a different unit within Cummings's portfolio and 

extending its term lease, but the parties did not agree to terms 

on any such relocation or extension. On January 12, 2016, 

Jumpsource's vice-president of sales sent an e-mail to

Cummings's account manager stating:

"At this time [Jumpsource has] decided we are closing the 

office in Beverly at the end of the contract (Nov 2016). 
4

We are trying to get all the employees down here to FL. 

Thanks for the help though!" 

Cummings's account manager responded the same day, in relevant 

part, as follows:

"Thanks for your message. Please note that, while 

Jumpsource's lease is currently scheduled to terminate on 

November 30, 2016, you should consult the lease for more 

information, as many of our leases contain extension, 

renewal, and/or cancellation options. Such provisions may 

alter the lease end date or otherwise result in the lease 

not terminating on the date referenced above.

"Despite your note, if there is any interest in maintaining 

even a much smaller one- or two-person office here at

Cummings Center, please let me know, as we have some nice 

options in the range of 200 to 500 leasable square feet."

 

On April 21, 2016, Cummings sent Jumpsource a letter 

notifying Jumpsource that it "does not have adequate insurance 

on file" and thus was in default of the lease. The letter 

further advised that Jumpsource could cure the default, that 

Cummings could purchase insurance on Jumpsource's behalf, or 

that Cummings could "declare the term of your occupancy ended." 

Jumpsource promptly sent an e-mail to Cummings about the letter, 

noting that its lease would expire on November 30, 2016, and 

asking, "How do you suggest we proceed if we only need office 

insurance for another 6 months or so? As you know we will not 

be renewing our Cummings Center lease . . . ." Cummings 

replied, in relevant part, as follows: 

"[I]n accordance with the notice provisions of your lease, 

we are unable to accept non-renewal notices that are 

transmitted by email. Per Sections 21 and 30 of your 
5

lease, notice must be sent within the required time period 

via certified mail or recognized overnight courier. . . . 

If you wish to terminate your lease on November 30, 2016, 

please deliver Cummings . . . proper notice as and when 

required under the lease. In the meantime, please note 

that all terms of your lease, including all extension, 

renewal, and/or cancellation options contained therein, 

remain in full force and effect." 

On August 4, 2016, in response to an e-mail from Cummings 

regarding August 2016 rent, Jumpsource sent an e-mail stating, 

in part, "I'll mail a check to you here from Florida. Sorry for 

the mixup [sic]. What's the move out process like? As you know 

we aren't renewing our lease and the final date is November 30." 

Cummings responded by e-mail as follows: 

"Thanks in advance for mailing the check. I will update 

our accounting department. 

"Regarding the currently scheduled lease termination date, 

as referenced in my prior emails, Section 30 of 

Jumpsource's lease provides that the term of the lease 

shall automatically extend for additional successive fiveyear periods, unless either party provides timely written 

notice as required by the lease exercising its option that 

the lease not so extend. Such written notice must be 

served by one of the methods identified in Section 21 of 

the lease between six and 12 months prior to the thencurrent lease expiration date. 

"In this case, in order for the lease to terminate on 

November 30, 2016, written notice to preclude the automatic 

extension would need to have been served on or before May 

30, 2016. As we never received any such written notice as 

required by the lease, the lease has extended through the 

currently scheduled termination date of November 30, 2021. 

Please note that all terms of your lease, including all 

extension, renewal, and/or cancellation options contained 

therein, remain in full force and effect. 

"As always, feel free to contact me with any questions."
6

On November 30, 2016, Jumpsource vacated the premises. 

There is no allegation that Cummings was unable to lease the 

premises or was prejudiced by Jumpsource's purported violation 

of the contract. 

3. Prior proceedings. On January 24, 2017, Jumpsource 

commenced the present action in the Superior Court seeking a 

declaratory judgment that it had provided sufficient and proper 

notice of its option not to renew the lease and alleging a 

violation of G. L. c. 93A.2 Cummings filed an answer and 

counterclaim seeking a declaratory judgment that Jumpsource 

failed to provide proper legal notice in accordance with the 

lease of its decision to opt out of the five-year automatic 

renewal and alleging breach of contract. The parties filed 

cross-motions for partial summary judgment3 and, in their joint 

statement of material facts, defined the discrete issue of law

as follows: "What is the legal effect, if any, of Jumpsource's 

emails to Cummings to opt out of the lease's automatic 

extension, where the notice provision in the lease required 

2 Cummings first filed a summary process action against 

Jumpsource in the District Court. That action was dismissed 

after the parties stipulated to Cummings's right to immediate 

possession of the premises. The parties then initiated the 

Superior Court action. 

3 The parties filed a joint statement of material facts, 

none of which was disputed by either party. 
7

adherence to specified methods of notice to the exclusion of 

other modes of transmission (including electronic and oral 

notice)?" A Superior Court judge ruled that the e-mail 

communications from Jumpsource to Cummings constituted effective 

and timely notice to opt out of the lease's automatic extension, 

and thus allowed Jumpsource's motion and denied Cummings's

motion.4 Partial summary judgment entered in favor of Jumpsource 

and against Cummings. At the parties' joint request, the judge 

entered separate and final judgment in favor of Jumpsource.5 

Cummings timely appealed. 

Discussion. 1. Standard of review. a. Summary judgment. 

Summary judgment is appropriate where "there are no issues of 

material fact, and . . . the moving party is entitled to 

judgment as a matter of law." Mass. R. Civ. P. 56 (c), as 

amended, 436 Mass. 1404 (2002). "We review a decision to grant 

summary judgment de novo." Boazova v. Safety Ins. Co., 462 

Mass. 346, 350 (2012). "[W]here both parties have moved for 

4 In her decision, the judge briefly addressed the issue of 

waiver, and determined that "there is no evidence Cummings 

waived the notice requirements of the [l]ease." Where we hold 

that the e-mail communications constituted effective notice of 

the option, we decline to reach the waiver issue. 

5 The parties represented that the allowance of Jumpsource's 

motion for partial summary judgment effectively mooted 

Cummings's counterclaims for declaratory judgment and breach of 

contract subject to this appeal. Their joint motion indicated 

that only Jumpsource's claim pursuant to G. L. c. 93A would

remain and that it would be stayed pending this appeal.
8

summary judgment, the evidence is viewed in the light most 

favorable to the party against whom judgment [has entered]"

(citation omitted). Id. "A party seeking summary judgment may 

satisfy its burden of demonstrating the absence of triable 

issues by showing that the party opposing the motion has no 

reasonable expectation of proving an essential element of its 

case" (citation omitted). Id. 

b. Contract interpretation. The parties agree that the 

relevant lease provisions are unambiguous. "The interpretation 

of an unambiguous written contract constitutes a ruling of law 

that is subject to plenary review on appeal." President & 

Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 

888, 891 (2003). "Where there is no ambiguity, we construe the

words of a contract in their usual and ordinary sense"

(quotation and citation omitted). DeWolfe v. Hingham Ctr.,

Ltd., 464 Mass. 795, 803 (2013). See Shea v. Bay State Gas Co., 

383 Mass. 218, 225 (1981) (court must construe contract language 

"to give it reasonable meaning wherever possible"). In 

addition, "[w]hat constitutes timely notice under [a lease] is a 

matter of contract interpretation and is therefore 'a matter of 

law for the court.'" Pilgrim Ins. Co. v. Molard, 73 Mass. App. 

Ct. 326, 331 n.8 (2008), quoting Royal-Globe Ins. Co. v. Craven, 

411 Mass. 629, 632 (1992). Therefore, we likewise review this

contract interpretation dispute de novo. See Baby Furniture 
9

Warehouse Store, Inc. v. Meubles D&F Ltée, 75 Mass. App. Ct. 27, 

29 (2009).

2. Analysis. Cummings contends that Jumpsource's e-mail 

communications constituted ineffective notice to invoke the 

nonrenewal option in the lease because Massachusetts law

requires an optionee to strictly comply with the terms of an

option. Cummings argues that insofar as the lease specified 

acceptable methods of notice and expressly excluded other 

methods, including "electronic notice," Jumpsource did not 

strictly comply with the plain terms of the lease, and thus the 

notice was insufficient as a matter of law.

Jumpsource responds that the purpose of the option 

provision was fulfilled because Cummings had actual notice well 

within the option period that Jumpsource had exercised its 

option not to renew. Jumpsource argues that our jurisprudence 

makes clear that a party's timely receipt of actual notice is 

generally not defeated by a nonconforming delivery method. 

Although Jumpsource's view is somewhat overbroad, it has the 

better argument in the present case. 

We begin our analysis with the plain language of the 

agreement, which states that the lease "shall be automatically 

extended" for an additional five-year lease term unless either 

party "serves written notice . . . of either party's option not 

to so extend this lease" within a specified timeframe. This 
10

provision gave both the landlord and the tenant the "option" to 

cancel the automatic renewal of the lease by providing timely 

written notice. Unlike many leases that contain affirmative 

options to purchase property or to terminate, renew, or extend a 

lease, the provision here is framed as an "option not to so 

extend" the automatic renewal of the lease. See Pear v. 

Davenport, 67 Mass. App. Ct. 239, 240-241 (2006) (tenant's 

option to purchase); Qureshi v. Fiske Capital Mgmt., 59 Mass. 

App. Ct. 463, 465-466 (2003) (option to extend); Loitherstein v. 

International Business Machs. Corp., 11 Mass. App. Ct. 91, 92 

(1980) (tenant's "right to terminate" ten-year lease "at the end 

of the fifth year of the initial term"); Gerson Realty Inc. v. 

Casaly, 2 Mass. App. Ct. 875 (1974) (tenant's option to renew 

lease). Contrast Patriot Power, LLC v. New Rounder, LLC, 91 

Mass. App. Ct. 175, 176 (2017) (analyzing "termination option" 

providing that lease "shall be automatically extended for 

additional successive Renewal Terms of one (1) year each unless 

Tenant or Landlord serves written notice . . . of either party's 

option not to so extend the Lease" within specified timeframe). 

Despite the somewhat awkward phraseology, both parties agree 

that the language is unambiguous. The parties further treat the 

wording as an "option" not to renew the lease, and we treat it 

as such for purposes of our analysis herein. 
11

"Generally, conditions for the exercise of an option 

require a more strict degree of adherence than may be the case 

in provisions of a bilateral contract." Westinghouse 

Broadcasting Co. v. New England Patriots Football Club, Inc., 10 

Mass. App. Ct. 70, 73 (1980) (Westinghouse). We have noted that 

because an optionee holds a unilateral right, there is a "lesser 

inclination of courts to inquire into the materiality of a 

breach of an option condition." Id. "In [such] circumstances 

it may not be too much to ask that a person seeking to . . . 

exercise option rights turn his corners squarely." Id. See 

Trinity Realty I, LLC v. Chazumba, LLC, 77 Mass. App. Ct. 911, 

912 (2010) ("Massachusetts takes a 'strict' view of options, 

and . . . a tenant's noncompliance with lease terms may result 

in its losing the privilege of exercising an option even if the 

same noncompliance would not warrant forfeiture of the existing 

tenancy"). See also Loitherstein, 11 Mass. App. Ct. at 94. 

Thus, as a general rule, option provisions are strictly 

construed such that we typically do not look to claims of 

materiality with respect to their enforcement. 

However, Massachusetts courts have recognized limitations 

to the concept of strict compliance with options. In some 

contexts, where a nonconformity does not contravene the crux of 

an option provision, we have considered the nature and 

materiality of minor deviations. This is particularly so as to 
12

the method of delivery of notice. For example, in Gerson Realty 

Inc., 2 Mass. App. Ct. at 875, we considered whether a tenant

had effectively exercised its option to renew a lease where the 

tenant provided notice via certified mail, but the lease 

required that "such notice . . . shall not be deemed to have 

been duly given or served unless in writing and forwarded by 

registered mail." Id. We held that the notice of renewal by 

certified mail was effective because "[t]he function of a 

requirement that notice be transmitted by registered mail is to 

provide a means of resolving disputes as to the fact of delivery 

of the notice." Id. Where the fact and timeliness of delivery 

were not in dispute, the differences between the manner of 

notice required and the notice provided were "of no 

consequence." Id. 

Similarly, in Computune, Inc. v. Tocio, 44 Mass. App. Ct. 

489, 493 (1998), we held that written notice delivered by 

Federal Express, instead of by certified or registered mail as 

required by the lease, constituted timely and effective exercise 

of a lease option. Here again, we reasoned that where the 

notice to extend the lease was in writing, timely, and delivered 

to the correct address, "the method by which the written notice 

was delivered [did] not result in a material violation of the 

lease." Id. We further recognized that, consistent with our 

precedent, "[d]elivery by Federal Express, in the circumstances 
13

present here, serves the same function and provides the same 

proof of delivery as certified or registered mail." Id. 

In Trinity Realty I, LLC, 77 Mass. App. Ct. at 911, we 

analyzed an option provision requiring that the tenant "not be 

in default in the performance, fulfillment or observance of any 

of the terms or provisions of this lease" to exercise the option 

to extend the lease term. Although the tenant "was not in full 

compliance with two lease covenants when it exercised the 

option," we held that the tenant's substantial compliance with 

the lease terms constituted adequate performance to maintain its 

rights under the lease, including its right to exercise the 

option provision. Id. at 912. We further distinguished 

"defaults of a significant nature" from technical violations 

that do not "go to the heart of the parties' agreement." Id. at 

912 & n.4.6 

Finally, in Cadillac Auto Co. of Boston v. Stout, 20 Mass. 

App. Ct. 906 (1985), we analyzed an option to purchase real 

estate requiring, inter alia, that the option be exercised "by 

6 Among the examples we provided of "defaults of a 

significant nature" was "the failure to exercise the option in 

the manner prescribed in the lease." Trinity Realty I, LLC, 77 

Mass. App. Ct. at 912 n.4. As discussed infra, however, our 

jurisprudence has distinguished material flaws in the exercise 

of an option from those that are immaterial. In circumstances 

like the present, a nonconforming delivery method -- when timely 

receipt of actual notice is undisputed -- is not a default that 

goes "to the heart of the parties' agreement." Id. 
14

notice in writing," (1) given within a defined timeframe, (2) 

"specifying a date and hour for delivery of the deed," and (3) 

committing to a closing within a specified period. Id. at 906, 

907. Stout, the holder of the option, provided a letter that 

did not specify a date and hour for delivery of the deed, and 

did not in clear terms commit Stout to a closing within the 

specified period. Id. at 907. Consequently, we held that the 

deviations from the option provision were "not immaterial" and, 

on that basis, affirmed the Land Court's determination that 

Stout's letter was ineffective to exercise the option. Id. 

It is clear from this line of cases that our jurisprudence 

has distinguished material flaws in the exercise of an option

from "immaterial," or "inconsequential," deviations, 

particularly those involving the method of delivery of notice 

where neither the timeliness nor fact of delivery of notice were 

disputed. See Westinghouse, 10 Mass. App. Ct. at 73-74 

(comparing flaws in exercise of option such as failure to give 

timely notice, failure to include purchase price, and failure to 

provide written notice and cashier's check, to nonconforming 

delivery method in Gerson Realty Inc., 2 Mass. App. Ct. at 875). 

Such minor nonconformities as identified in Gerson have 

typically not been held to render ineffective duly received 

notice. See e.g., Computune, Inc., 44 Mass. App. Ct. at 493. 
15

Of further note, our precedent has also recognized that the 

rationale for requiring strict compliance with the exercise of 

an option stems from the creation of a "unilateral" right 

exclusively held by the holder of the option. See Loitherstein, 

11 Mass. App. Ct. at 94 (termination option held by tenant

"created a conditional limitation on the leasehold estate; a 

right which was unilateral in nature, exclusively for [tenant]'s 

benefit, and thus to be strictly construed"). See also 

Westinghouse, 10 Mass. App. Ct. at 73. Here, no such 

exclusivity existed, as both Cummings and Jumpsource held an 

option not to extend the lease. Accordingly, in the present 

context where either party may exercise the option, the policy 

underlying the rule of strict compliance is somewhat less 

compelling. 

Keeping this wealth of precedent in mind, we look to the 

gravamen of the option provision in the lease, which is to 

require the party exercising the option to timely inform the 

other party, in writing, that it is not renewing the lease.7 It 

7 We note that the option provision at section 30 of the 

lease required Jumpsource to serve "written notice" of its 

option not to extend the lease, and to do so "not more than 12 

months or less than six months prior to the expiration of the 

then current lease term." The option provision does not 

otherwise define the required method of notice. Rather, the 

"notice" provision at section 21 of the lease is a separate 

stand-alone provision that applies to any and all notices to be 

provided by Jumpsource to Cummings under the lease. Where we 

construe the lease as a whole, see East Coast Aviation Corp. v. 
16

is undisputed that Jumpsource did so, and Cummings does not 

contest the timeliness or fact of its receipt of the unambiguous 

written notice of Jumpsource's exercise of the option.8 Indeed, 

despite Cummings's argument that settled law and public policy 

demand, to ensure commercial certainty, that parties to a 

contract be strictly held to the language they chose, Cummings

provides no persuasive argument that Jumpsource's multiple 

communications within the opt-out period created any uncertainty 

for Cummings. See Korey v. Sheff, 3 Mass. App. Ct. 266, 268 n.5 

(1975) ("It is generally held that timely notice of intent to 

exercise an option to renew is effective upon receipt of such 

notice").

Cummings claims that the present case is distinguishable 

from our precedent because the "notice" provision here specifies 

that "[n]o oral, facsimile or electronic notice shall have any 

force or effect." We disagree, as our cases have held 

nonconforming notice to be effective even where the notice 

provision's language provided exclusive methods of delivery. 

See, e.g., Gerson Realty Inc., 2 Mass. App. Ct. at 875 

Massachusetts Port Authy., 346 Mass. 699, 705 (1964), whether 

the details of the notice requirements are contained within the 

option provision or as a stand-alone provision is not 

dispositive. 

8 Nor does Cummings contend that an e-mail message does not 

constitute "written" notice.
17

(nonconforming notice was effective even though lease specified 

that notice "shall not be deemed to have been duly given or 

served unless in writing and forwarded by registered mail"

[emphasis added]). In these circumstances, where Jumpsource

provided actual written notice of its decision not to extend the 

lease within the time prescribed by the lease, the nonrenewal 

option was not exclusive to Jumpsource, and there is no dispute 

that Cummings received and acknowledged the e-mail notice, the 

distinction proffered by Cummings does not alter the analysis or 

the result we reach.

Cummings also contends that policy reasons dictate that the 

parties strictly adhere to the precise terms of the option 

provision. For example, Cummings posits that our holding would 

enable tenants to misdirect landlords about their true 

intentions as a negotiating strategy.9 Cummings further suggests 

that under our holding, any notice -- whether via oral 

communication or otherwise -- would invariably be sufficient to 

exercise the option. We disagree. We do not intend to suggest 

that any and all written communications of a party's intent to 

9 We reject Cummings's claim that Jumpsource could have 

"changed its mind" after sending the e-mail messages expressing 

its intent to invoke the option and subsequently relied on the 

lease language to argue that its electronic communication was 

ineffective. Had Jumpsource done so in the present factual 

scenario under the same commercial lease, where the notice was 

clear, repeated, and acknowledged, Jumpsource would have fared 

no better than Cummings. 
18

exercise an option would be sufficient to satisfy the terms of 

that option. Likewise, we do not hold that an oral statement of 

a party's intent to exercise an option would be sufficient (and 

indeed it would not be so) where the contract requires the 

notice to be in writing. To be clear, we hold only that on the 

undisputed summary judgment record before us, the clear, timely, 

unambiguous written notice provided by the tenant and received

and acknowledged by the landlord constituted effective notice to 

invoke the lease nonrenewal option before us.10

The judgment dated September 17, 2021, is affirmed.

So ordered.

10 In her decision allowing partial summary judgment, the 

judge stated that "[t]here are no blameless parties here." She 

further noted that Jumpsource failed to provide notice via the 

methods specified in the lease, "a small act that would have 

avoided costly litigation," while Cummings, despite having 

"actual notice of Jumpsource's intent to terminate the 

Lease . . . , covered its ears like a child unwilling to listen 

to a piece of unwelcome information." Although our review is de 

novo, we concur with the judge's assessment in this regard. 

Protracted and needless litigation would have been avoided 

through minimal reasonable conduct by either party.