Vernon v. Kennedy

273 S.E.2d 31 (1981)

James M. VERNON & wife, Elizabeth Vernon v. Durwood KENNEDY & wife, Janet S. Kennedy.

No. 808SC493.

Court of Appeals of North Carolina.

January 6, 1981.

*32 Douglas P. Connor, Mount Olive, for plaintiffs-appellants.

Kornegay & Rice by Robert T. Rice, Mount Olive, for defendants-appellees.

CLARK, Judge.

Plaintiff may not recover under the lease as a matter of law. The lease provides, at an absolute maximum, for a term of two years, even assuming the giving of proper notice. The lease could thus under no circumstances continue in force after 30 April 1973.

Plaintiffs point out in their brief that our Supreme Court, in considering a somewhat similar situation, has stated that

"when a tenant under a lease for a fixed term of one year, or more, holds over after the end of the term the lessor may eject him or recognize him as a tenant. (Citation omitted). If the lessor elects to treat him as a tenant, a new tenancy relationship is created as of the end of the former term. This is, by presumption of law, a tenancy from year to year, the terms of which are the same as those of the former lease in so far as they are applicable ...." (Emphasis added.)

Kearney v. Hare, 265 N.C. 570, 573, 144 S.E.2d 636, 638 (1965). We believe the foregoing is an accurate statement of the law. Under this law the plaintiffs, having presented no facts to rebut the presumption, were at best tenants from year to year under the applicable terms of the expired lease.

The option term in paragraph 7 of the lease cannot be construed as "applicable" to the tenancy from year to year for the reason that by its own terms, paragraph 7 is limited to "the term of this lease or the extended period thereof." Since the lease, again by its own terms, could not be extended beyond 30 April 1973, an attempt to exercise the option in 1979 would come outside the extended term of the lease.

Were the lease still in effect, the option would remain in effect. The law, however, is that "a new tenancy relationship [was] created." Id. This new tenancy may be substantially similar to the original lease relationship, but it will not include terms from the former lease that were expressly limited to the effective period of the lease itself.

Affirmed.

HEDRICK and WHICHARD, JJ., concur.