NATURE OF TENANCY WHERE LESSEE REMAINS IN POSSESSION WITHOUT NOTICE TO LESSOR.

Sayre, J., of the Fourth District, sitting by designation in the place of Shields, J., of the Fifth District.

Court of Appeals for Knox County.

#### Bessie M. Owen v. Luther A. Barre.

Decided April 22, 1920.

*Lease*— For *a Five Year Term*— Last *Three Years to he at Option of Lessee on Giving Notice*— Lessee *Remains in Possession Without Giving Notice*— Nature *of Sis Tenancy.*

1. A lease, stipulating a term of five years for an agreed sum payable in monthly installments in advance on the first of each month, and providing that the last three years of said term of five years is to be at the option of the lessee on the giving of ninety days notice, in Writing, immediately preceding the expiration of said two year period of his intention to occupy for the three years fob-lowing, terminates at the end of the second year if the notice is not given.

2. In case the lessee, without giving such notice, holds over and pays the stipulated rent he becomes a tenant from year to year.

3. The folding over beyond the two years period and paying the rent without having giving the notice to extend the term will not alone be sufficient to constitute an election to extend the term for the period provided by the option.

*K. L. Carr,*for plaintiff in error.

*Ewalt & Blair,*for defendant in error.

Sayre, J.

June 21, 1915, Bessie M. Owen leased to Luther A. Barre a certain storeroom, together with the cellar beneath the same, on the east' side of South Main street, Mt. Vernon, Ohio, “for the term of two years, with the privilege of three years longer on the same terms and conditions, commencing on the first day of July, 1915, and ending on the 30th day of June, 1920, for the agreed sum of $3,300, payable, in monthly payments of $55 each, *41in advance on the first day of each month during the term of this lease. The last three years of said term of five years is to be’ at the option of said second party on thé giving of ninety days notice in writing immediately preceding the expiration of said two year ‘period of his intention to occupy said premises for said three years following. ’ ’

The lessee occupied the premises for two years, and without giving any notice whatever continued in possession until the end of the third year when he vacated the premises, having páid his rent in full to that time. Suit was brought by lessor to recover rent for ten months of the fourth year.

In the court of common pleas a demurrer was sustained to the petition for the reason that the same did not state facts sufficient to constitute a cause of action.

Plaintiff claims that by holding over one year of the three year period the defendant was bound for the payment of rent until tlfe end of that period, and as reflecting on that question attention is called to the language of the lease that it begins July 1,1915, and ends June 30, 1920, for the total sum of $3,300, payable in monthly installments of ,$55 each, and particularly to the language “the last 3 years of the term of 5 years” contained in said lease. It is claimed further that the notice referred to in the lease is for the benefit of the landlord and that it may be waived, and that the remaining over into the third year justified the landlord in believing that the lessee had decided to remain a tenant for the remaining three year period, and led the landlord to treat him as a tenant, and not as a trespasser, at the end of the second year when the lessee continued in possession of the premises.

We have been referred to a number of eases, where property was leased for a definite time with privilege or option for a number of years more, in which it was held that the privilege of extending the term for the full period provided in the option or privilege was exercised by simply remaining in possession and paying the rent. But these are cases in which no notice was required by the terms of the lease in order to take advantage of the option or privilege for an extension, as in *Miller*v. *Albany Lodge*
      *42(Ken.), 182 S. W., 936. The writer of the opinion in that case (p.937) says:

> “The courts make a distinction between a covenant to renew a lease and a provision conferring on the lessee the privilege of extending his term. In the former ease *some*positive act on the part of the parties or notice by the tenant is required, while in the latter case a mere holding over by the tenant for a portion of the extended term is, in the absence of a stipulation for notice in the lease, a sufficient notice and constitutes an election to hold for the additional or extended term.”

But it will be observed that in that case the court indicates the existence of a different rule in case where there is a stipulation for notice in the lease.

If the lease requires a notice for the extension of the term, it is essential to the extension that the notice be given. *Abadie*v, *Berges*(La. Ann.), 8 So., 529.

It is clear that at the end of the second year the lease under consideration was terminated in the absence of the notice re-' quired of the lessee. When he held over without giving the notice, was it his intention to extend the lease for the additional three years or not f

The courts have held that such intention is not shown by merely holding over, and if the rental is received by the lessor it will be a holding from year to year and the lessee will not be bound to pay the rent for the remaining period provided by the option or privilege contained in the lease if he should quit the premises af the end of any year. *Cooper vs Joy*(Mich.), 63 N. W., 414; *Gerhart Realty Co.*v. *Brecht*(Mo.), 84 S. W. 216; *English*v. *Murtland*(Penn.), 63 Atl., 882; *Bradford*v. *Patten,*108 Mass., 155.

While the lease in controversy contains language indicating that the parties had agreed that the term should be for five years, it is a term for two years subject to an extension of three years more at the option of the lessee.

The judgment will be affirmed.

ITouck, J., and Patterson, J., concur.