Judge Harriet Thompson
Landlord served tenants with a 30-day notice of termination seeking to recover possession of the premises arguing tenants held over at the end of their lease. Tenants moved to dismiss arguing improper service, and claiming a nonpayment suit was pending between the same parties. Tenants interposed affirmative defenses, including the option to renew was properly exercised by respondents, albeit untimely, without landlord’s objection. Prime tenant Phyllis Phillips claimed she was initially unaware of a paragraph, allegedly missing from her copy of the lease, requiring exercising of the option. She noted as soon as she was made aware of it, she exercised the option, and noted landlord continued to accept rent after expiration of the lease agreement. The court disagreed noting the lease contained a non-waiver clause, and stated where a landlord accepted rent for any period after a lease expired, the tenancy created by same was a month-to-month tenancy. It found the exercise of the lease extension was ineffective as it was not made within the time period prescribed in the lease, nor was it served on landlord, but to landlord’s attorney. The court noted the exercise could not be classified as mere inadvertence, thus was fatal, awarding landlord a final judgment of possession.
