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Landlord has a tenant which opened a pizzeria more than 50

years ago and is still...
Landlord has a tenant which opened a pizzeria more than 50 years ago and is still in business.
Latest new 5 year Lease was made in 1998. Lease had a 5 year Option to Renew. In 2003, new Renewal of Lease agreement for 5 years was prepared, giving Tenant another 5 year Option to Renew. Renewal covered tenancy from 2003 until 2008. In 2008 Tenant sent a letter exercising his Option to Renew, so tenancy was extended from 2008 until 2013.
1998 Lease and 2003 Renewal of Lease were signed by both parties.
In 2009 (not 2008) new Renewal of Lease was prepared and most likely signed by landlord. Landlord does not have a copy of the Renewal with one signature. Tenant never signed and/or returned this Renewal to Landlord.
On the advice of tenant’s attorney, tenant claimed first that he never received this Renewal, and then that Renewal should had been changed to fully comply with the 1998 Lease. That was never done.
In 2013 Landlord sent a letter to Tenant telling him that Landlord would not negotiate a new Lease with Tenant, and that Tenant had to vacate premises. Tenant’s attorney then sent a letter to Landlord that Tenant was exercising his Option to Renew and claims that Tenant will stay in business until 2018.
Is tenant’s attorney correct when he claims that his client unilateral Notice Exercising Option to Renew in 2013 is valid, and that he can stay in business until 2018? Can Landlord imitate eviction procedure?
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Answered in 13 minutes by:
7/1/2013
Ely
Ely, Counselor at Law
Category: Landlord-Tenant
Satisfied Customers: 102,932
Experience: Attorney
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Hello friend and thank you for requesting me. Looking back, I see that we had conversed in 2012. I hope that you are well.

Just to clarify - are you the tenant or the landlord here?
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Customer reply replied 4 years ago

 


My question is how to interpret Notice to Exercise Option to Renew from Tenant's attorney to Landlord?


 


Tenant's option is a unilateral action, so, based on the facts I presented to you, what is your legal interpretation of the Notice sent in 2013; is it valid, or not?

S,

Thank you for your reply. The thing is, this can go either way. I want to form my answer so it allows you to get an idea of where you stand in your position. So I need to know whether or not you are the landlord or the tenant in this scenario?
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Customer reply replied 4 years ago

 


I am asking on behalf of landlord.


 


 

Thank you.

Under common law, a commercial tenancy automatically renews for the number of years stated in the Renewal clause unless someone objects. This means that unless either party objected to the renewal last time, the lease auto-renewed.

Is tenant’s attorney correct when he claims that his client unilateral Notice Exercising Option to Renew in 2013 is valid, and that he can stay in business until 2018?

Correct is a strong word. It is better to state "does this make sense to argue?" The answer is yes, they can argue this, but not necessarily successfully if the landlord can show that the landlord had served the tenant with a notice that no renewal would be taking place.

So the claim by the landlord here can be that the landlord never told the tenant that they were not renewing, and as such, the tenant reasonably believed and should get the benefit of the renewed lease. But again, this is if the tenant can show that the landlord has never served the tenant with the non-renewal notice. If there is evidence of this (certified letter return), and/or emails/SMS back and forth that show that the tenant knew that the lease would not be renewing, then their claim will fail.

Can Landlord imitate eviction procedure?

Yes. But the Court would have to believe the landlord in that the landlord gave the tenant the notice that no renewal would happen. Absent any evidence, it is often very much based on which party the Judge finds more believable.

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Ely
Ely, Counselor at Law
Category: Landlord-Tenant
Satisfied Customers: 102,932
Experience: Attorney
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Customer reply replied 4 years ago

Your answer is very good.


 


Landlord asked an attorney to sent a letter to the Tenant 4 months prior to the termination of Option term in 2013, notifying Tenant that Landlord had no intention to negotiate a new lease. Letter was received by the Tenant.


 


What about Renewal of Lease agreement prepared for the Tenant in 2009, never signed by both parties, and rejected by the Tenant's attorney?



Can the Tenant somehow based the 2013 Notice of Exercising Option on that agreement?



 


 

Thank you for your kind words.

Landlord asked an attorney to sent a letter to the Tenant 4 months prior to the termination of Option term in 2013, notifying Tenant that Landlord had no intention to negotiate a new lease. Letter was received by the Tenant.

Then this is good for the landlord, as it shows that the tenant had received notice of non-renewal.

What about Renewal of Lease agreement prepared for the Tenant in 2009, never signed by both parties, and rejected by the Tenant's attorney?

If this was never signed by either party, then it is not binding at all and is not considered part of this matter.

Can the Tenant somehow based the 2013 Notice of Exercising Option on that agreement?

No. This would only be seen as a negotiated agreement that was never adopted and is not in affect at all.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
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Customer reply replied 4 years ago

Now I have a clear answer and will accept it.


Thank you

My pleasure, S. Best of luck.
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Ely
Ely
Ely, Counselor at Law
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