OPINION
KELLAM, District Judge.
Plaintiffs seek judgment declaring and adjudicating their rights under a
Briefly stated, Richard J. Davis and Jean M. Davis, husband and wife, leased ten vacant lots in Virginia Beach to the aforesaid officers' club, to be "used exclusively as a parking area and/or for other purposes in connection with the management and operation" of the club, "for the term beginning 1 May 1952 and ending with 1 May 1953." The lease provided that lessee "shall not assign this lease in any event," and was not permitted to "sublet the premises except to a desirable tenant, and for a similar purpose," nor was lessee to permit the use of the premises "by anyone" other than the lessee, its sublessee and agents. Lessee advised it would like use of the lot for more than one year, but that it did not have authority to enter into a lease for a greater period of time than a year. To avoid renegotiating the lease each year, the following language was incorporated:
In addition, the lessee reserved "the right to terminate this lease at any time upon giving thirty (30) days written notice."
Defendant says the lease creates a right to perpetual renewals. Plaintiffs say the lease gives defendant only a right to renew for a reasonable time; that the language is not sufficient to indicate an intent to grant perpetuity; and that since it is a lease for an indefinite period it is terminable on reasonable notice after a reasonable period of time.
The lease is not by deed, is not under seal, is short, covers vacant property, extends for one year, with provision for renewal at the exclusive option of lessee, and likewise with the right to lessee to terminate upon 30 days notice. The renewals are at the same rental as the original period, with no escalation clause, and there is no stated limit for renewals. Nowhere in the lease does the language "perpetual," "forever," "for all times," "in perpetuity," "successive," "endless periods," "continuous," everlasting," or any similar words of description of the terms of the lease appear. The use of the premises by lessee is restricted to that of a parking area and purposes connected with operation of a beach club. The lease may not be assigned "in any event," and any subletting is limited to a "desirable tenant, and for a similar purpose," nor may lessee permit others to use the premises. Lessee has the right to attach fixtures, etc., to the premises which shall remain the property of and may be removed by lessee prior to termination of the lease. There is nothing about the authorized or permitted use of the premises, the term of occupancy, the rental, the rights granted or language used to suggest the parties intended the lease to continue in perpetuity. To the contrary, the fact the lease extended for only one year, and even then could have been terminated upon thirty days notice, the right to terminate any renewal on thirty days notice, the restrictions on use, assignment or sub-letting, the lack of an escalation clause, the right to remove any fixtures placed on the premises, the lease not being under seal, and the fact that the lessee could only enter into a lease for one year, all accent the lack of an intent to create a perpetual lease. The lessee had the right to place fixtures or structures on the premises which would increase the amount of real estate taxes
The lack of covenants, undertakings, conditions and provisions usually contained in a long term or perpetual lease are missing here. The provisions of the lease are those usually contained in short term leases. The restriction against use except as a parking area and/or purposes connected with the operation of a beach club, and restrictions on assignment "in any event" and subletting "except to a desirable tenant," the inability of lessee to enter into a lease for more than one year, together with the right to terminate on 30 days notice, are not the conditions usually found in a perpetual or long term lease. Construed as a perpetual lease, it could tie up the property forever for one particular and narrow use, regardless of the potential of the property, the change of the area, the economic changes. The option to renew is limited to the named lessee, for the lease provides that the lease may "at the option of the Lessee," be renewed. The right does not extend to its successors, assigns, sub-lessees, or any other person. In fact, lessee may not assign the lease. With such limitations, it could hardly be construed as a perpetual lease.
I.
Perpetual leases are not favored in the law, nor are covenants for continued renewals which tend to create a perpetuity. The intent to create a perpetual lease must appear in clear and unequivocal language, so plain as to leave no doubt it was the intention and purpose of the parties so to do. It should not be left to inference. Vol. 50 Am.Jur.2d, page 56, § 1171, subj. Landlord and Tenant [Vol. 32 Am.Jur. page 813, etc.]; Vol. 51C, C.J.S. Landlord and Tenant § 61b, pages 188-189; Anno. 31 A.L.R.2d 623, Perpetual Renewal; Winslow v. B. & O. R. Co., 188 U.S. 646, 23 S.Ct. 443, 47 L.Ed. 635; Geyer v. Lietzan, 230 Ind. 404, 103 N.E.2d 199, 31 A. L.R.2d 601; Tischner v. Rutledge, 35 Wn. 285, 77 P. 388; Hallock v. Kintzler, 142 Ohio St. 287, 51 N.E.2d 905; cases collected in Annotation in 31 A.L. R.2d, page 623.
A perpetuity will not be regarded as created from an ordinary covenant to renew. "There must be some peculiar and plain language before it will be assumed that the parties intended to create it." Winslow v. B. & O. R. Co., 188 U.S. 646, 655, 23 S.Ct. 443, 446.
Much has been written concerning perpetual leases. The issue here is not whether perpetual leases are valid, but whether the lease in question qualifies as a valid perpetual lease. The following authorities have this to say:
(a) Vol. 50 Am.Jur.2d, page 56, § 1171, subj. Landlord and Tenant:
(b) Vol. 51C C.J.S. Landlord and Tenant § 61b, pages 188-189:
(c) Annotation in 31 A.L.R.2d 623, § 9:
The author here cites cases from Indiana, Iowa, Kentucky, Michigan, Mississippi, Missouri, New York, Ohio, Pennsylvania, Virginia, Washington, West Virginia and Wisconsin.
(d) Geyer v. Lietzan, 230 Ind. 404, 103 N.E.2d 199, 31 A.L.R.2d 601:
(e) Tischner v. Rutledge, 35 Wn. 285, 77 P. 388:
II.
The lease in issue extends for one year with option to the lessee named "to renew from year to year," provided written notice be given to lessor at least 30 days before the lease or any renewal would otherwise expire. There is no limitation on the number of renewals, so that if defendant's construction of the lease is accepted, it could continue forever. That is, no definite term for the continuance of the lease is fixed. It goes on and on. The lessee may terminate it at any time upon thirty days notice, but lessor is bound forever.
A contract or lease for an indefinite period is terminable at will, upon reasonable notice, by either party. Stonega Coal & Coke Co. v. Louisville and Nashville R. R. Co., 106 Va. 223, 55 S.E. 551; Town of Vinton v. City of Roanoke, 195 Va. 881, 80 S.E.2d 608; Wards Co., Inc. v. Lewis and Dobrow, Inc., 210 Va. 751, 173 S.E.2d 861 (1970). In the early case of Cowan v. Radford Iron Co., 83 Va. 547, 3 S.E. 120, Cowan made a mining lease agreement with the Iron Company for mining ore with the right to remove any machinery, buildings, etc., placed thereon. No time was specified for the work to end and the rights to expire. The Court said:
The above language was cited and approved in Eason v. Rose, 183 Va. 359, 32 S.E.2d 66.
In Town of Vinton v. City of Roanoke, supra, the Town held a contract with the Vinton Water Company by which the Water Company was required to furnish water to the Town at a specified price "as long as [Town] shall require the same to be furnished, to be paid monthly." The Town had a right to discontinue the use of the water upon six months written notice. Thereafter the City of Roanoke acquired the holdings of the Water Company and notified the Town it would not abide by the contract. In holding such contract "was not perpetual," the Court said [80 S.E.2d 608, 616]:
III.
The background of the lease demonstrates the parties did not intend the lease to be perpetual. The reason for the renewal provision was the inability of lessee to enter a lease for a longer period of time than one year. To further illustrate, lessee wanted the right to cancel the lease at any time on 30 days notice. By the terms of the lease, lessee could give notice to renew,
(a) Geyer v. Lietzan, supra, involved a lease for a two year period, with the right at lessee's option "of renewing this lease with and under all the terms and conditions thereof, successively" upon giving written notice 30 days "before the expiration of any two year period of this lease, or any successive renewals * * * and that upon the 3rd or any subsequent renewal the lessor may * * * increase the annual rental * * *." In holding such language did not constitute a lease in perpetuity, the Court said:
(b) Buckland v. Tarble, 95 Vt. 87, 112 A. 217, dealt with a lease for one year "with the right and privilege" to lessee "to renew this lease from year to year under the same terms and conditions herein stated" by paying the rent in advance. After the third renewal, lessor refused to extend. In holding the language used did not grant the right to perpetual renewals, the Court said:
(c) Tischner v. Rutledge, 35 Wn. 285, 77 P. 388, dealt with a lease for one year "with the privilege at the same rate and terms each year thereafter from year to year." There the Court said the lease contained "only covenants applicable to a short fixed term," and was of the opinion "that the lessee and his assigns became tenants from month to month after the expiration of the year mentioned in the lease."
(d) Hallock v. Kintzler, supra, dealt with language providing "this lease may be renewed from year to year at the same rental and at the option of the lessee" upon giving 30 days notice of intention to renew. In holding the language did not establish a perpetual lease, it was said:
(e) King v. Wilson, 98 Va. 259, 35 S. E. 727, dealt with a lease for one year or ten years with a provision "renewable, or pay for the improvements at their valuation." At the time of contest the lessee had been in possession beyond the 10 year period, and beyond a 10 year renewal period. The Court stated:
(f) Lawson v. West Virginia Newspaper Pub. Co., 126 W.Va. 470, 29 S.E.2d 3, quoted from Thaw v. Gaffney, 75 W.Va. 229, 83 S.E. 983, 3 A.L.R. 495, the following language, which it approved:
(g) See also Kalicki v. Bell, 83 N.J.Super. 139, 199 A.2d 58; Brower v. Glen Wild Lake Co., 86 N.J.Super. 341, 206 A.2d 899; Hutson v. Knabb, 212 So.2d 362 (Fla.App.)
A general covenant for renewal such as the one used in the lease in question does not imply a perpetual renewal. The use of the language in the lease before the Court asserting the "lease may, at the option of the Lessee, be renewed from year to year" provided 30 days written notice is given "to Lessor," under all of the terms of the lease, does not constitute language sufficient to constitute a lease in perpetuity. It constitutes tenancy from year to year which
Lessee has used the premises for 18 years. During this time the rent has remained constant, although the property is located in a fast growing and booming area. At the time of the lease, the premises were located in Princess Anne County, adjacent to the ocean front and adjoining the Town of Virginia Beach. At that time the population of the County and Town was 42,277. Since that time, some 13 square miles of the County and 30 to 35 thousand population have been annexed by Norfolk City, the Town of Virginia Beach became a city, and Princess Anne County and the City of Virginia Beach merged to form the greater City of Virginia Beach, with a population of 166,066 in 1970. It is clearly apparent that the availability of land on or near the ocean is limited, and in demand. Real estate taxes have increased substantially. The value of the property covered by the lease is several times greater than it was in 1952. The value of the dollar has depreciated. This opinion is not, and should not, be founded on such facts. These facts point out some of the reasons courts are reluctant to declare leases perpetual where the language of the lease does not clearly show the parties intended perpetuity.
The lease is therefore declared to be a lease from year to year terminable by either party giving the required notice.
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