Ryland v. Appelbaum

KNIGHT, J.

Unlawful detainer. On April 10, 1920, plaintiffs leased certain real property to defendants for a term of three years, commencing May 1, 1920, and ending April 30, 1923, under a written lease, which provided for a surrender of the premises at the expiration of the term, and also that “should the said lessee hold over the term herein created, such tenancy shall be from month to month only, and be on the same terms and conditions herein stated. ’ ’ On January 17, 1923, the lessees were personally served with written notice, signed by the lessors, to the effect that the lease would “terminate and end on the 30th day of April, 1923, at twelve (12) o’clock midnight,” and that the defendants would be required to vacate said premises and surrender and deliver the possession of the same to plaintiffs “on or before April 30, 1923.” Subsequently, on April 20, 1923, by a letter written by plaintiffs’ attorney, the defendants were reminded of the previous notice served upon them by the lessors, to the effect that the lease would not be renewed, and suggesting that if defendants would consult an attorney they would be advised that they had no right to continue the occupancy of said premises beyond April 30, 1923; said letter further stated: “Also, please take notice that under the terms of the lease you. must surrender possession of the premises on the expiration of the lease. Should you fail to do so, it will become my duty to institute proceedings on behalf of the owners of the property.” Notwithstanding these two notices, defendants continued in possession after April 30, 1923. On May 1, 1923, the day following the ex

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piration of the term of the lease, plaintiffs commenced this action in unlawful detainer under subdivision 1 of section 1161 of the Code of Civil Procedure, and on June 28, 1923, were given judgment for the restitution of the premises and for the payment of damages for the unlawful detention thereof.

Defendants have appealed from the judgment upon the sole ground that service upon them of a three-day notice after the expiration of the term fixed by the lease was a necessary prerequisite to the commencement of this action, which notice was not given. In other words, defendants contend that because they continued in possession of the premises beyond the term fixed by the lease, in violation of its terms and against the expressed will and consent of lessors, they became tenants from month to month under the hold-over clause of the lease, and that consequently a three-day notice was necessary to terminate such monthly tenancy before suit could be properly commenced against them for restitution of the premises.