Opinion
47289.
ARGUED JUNE 6, 1972.
DECIDED SEPTEMBER 6, 1972. REHEARING DENIED OCTOBER 26, 1972.
Action for broker's commission. Fulton Civil Court. Before Judge Bradford.
Marvin P. Nodvin, Ira S. Zuckerman, for appellant.
Westmoreland, Hall Bryan, John L. Westmoreland, J. M: Crawford, for appellees.
Where a real estate agent brought suit against the executrices of an estate seeking to recover rental commissions pursuant to a lease agreement which provided for payment of commissions of 5% of rentals paid under the lease or under an extension or new lease, a summary judgment was properly granted for the defendants where it was conclusively established that the lease had expired and there was no extension or new lease thereunder.
ARGUED JUNE 6, 1972 — DECIDED SEPTEMBER 6, 1972 — REHEARING DENIED OCTOBER 26, 1972.
The appellant in this case is C S Realty Company, a licensed real estate agent. The appellees are Lucy Bryant Williamson and Billie Bryant Henry, as Executrices of the Estate of Lucy D. Bryant.
For the purposes of simplifying the statement of facts and the application of law thereto, C S Realty Company, appellant, will be referred to as "agent"; Lucy Bryant Williamson and Billie Bryant Henry, as Executrices of the Estate of Lucy D. Bryant, Appellees, will be referred to as "executrices." Lucy Bryant Williamson and Billie Bryant Henry, individually, will be referred to as "heirs"; Lucy D. Bryant will be referred to as "lessor"; and Gibson Lithoplate Company, Inc., will be referred to as "lessee."
In December 1964, lessor, lessee and agent entered into a written lease for certain premises, which lease was for a period commencing on February 1, 1965, and ending on May 31, 1970. The lease contained the following covenant: "Lessor agrees to pay agent as compensation for services rendered in procuring this lease, the first month's rent hereunder, and in addition thereto five percent (5%) of all rentals thereafter paid by lessee under this lease. Lessor, with consent of lessee, hereby assigns to agent the first month's rent hereunder and five percent (5%) of all rentals paid under this lease. Lessor agrees if this lease is extended, or if new lease is entered into between lessor and lessee covering leased premises, or any part thereof, then in either of said events, lessor, in consideration of agent's having procured lessee hereunder, agrees to pay agent five percent (5%) of all rentals paid to lessor by lessee under such extension or new lease." Under paragraph thirty (30) of the lease, the term "lessor" included the heirs and representatives.
In August 1969, nine months prior to the expiration of the lease, the lessor died testate. The heirs continued to pay to the agent the real estate commission for the months inclusive of September 1969, through May 1970. Although the agent was negotiating a new lease for the lessor prior of her death, the executrices did not, while the realty was being administered in the estate, enter into any new lease. However, the same lessee remained on the premises after the expiration of the lease, at the same rental. On July 16, 1970, the executrices transferred to themselves as heirs the property which is the subject matter of the lease. In August 1970, the heirs and the lessee entered into a new lease on the same premises, at the same rental, for a period commencing on September 1, 1970, and ending on August 31, 1975.
In April 1971, the agent instituted an action against the executrices for the commissions which had not been paid. The executrices filed a response, but denied that they, as executrices, were indebted to the agent for any commissions. After discovery, the agent amended its complaint and added as new parties the heirs and the lessee and served each of the new parties with process. The agent, in the amended complaint, alleged that the executrices, the heirs and the lessee had entered into a scheme to defraud the agent of its commissions. Neither the heirs nor the lessee filed defensive pleadings, and as to those defendants, the case was in default.
The executrices filed a motion for summary judgment, and in their affidavits denied that they were obligated by reason of the original lease. The agent filed its counter-affidavit.
A summary judgment was granted to the executrices and appeal was taken from that order.
It is contended that the executrices are liable for commissions extending through the termination of the lease agreement between the heirs and the lessee, which lease is from September 1, 1970 through August 31, 1975. The agent relies upon Reynolds v. Tufts, 123 Ga. App. 147 ( 179 S.E.2d 652), which contained the following lease provisions: "Lessor shall pay agents, as compensation for services rendered in procuring this lease, 5% of all rentals thereafter paid by lessee to lessor as rent for premises or any part thereof, whether paid under this lease or not." This court held: "that provision clearly contemplates that as long as the two named parties maintain the lessor-lessee relationship for the described premises as shown in the original lease the agent will be entitled to continuing commissions for bringing them together initially."
The instant lease agreement contains no such provision and hence we cannot construe this instrument as containing the broad all-inclusive intent as was there found. Here the language and thus the intent is definitely confined.
Under the terms of the contract quoted in the statement of fact, the agent was entitled to 5% of all rentals paid by the lessee under the lease or any renewal thereof, or if there was a new lease between the lessor and the lessee covering the leased premises or any part thereof. The contract further provided with regard to holding over: "If lessee remains in possession of premises after expiration of the term hereof, with lessor's acquiescence and without any express agreement of parties, lessee shall be a tenant at will at rental rate in effect at end of lease; and there shall be no renewal of this lease by operation of law." This provision clarifies a legal problem that arises where there is a lease for a certain term and the tenant after the expiration of the lease by consent of both parties remains in possession of the premises and continues to pay rent, the question being whether the law implies a renewal of such lease or a tenancy at will. Williams v. Stark, 75 Ga. App. 668, 672 ( 44 S.E.2d 300).
The first lease expired May 31, 1970, and there is no basis to find an extension or renewal of the lease. In Hunter v. Benamy Realty Company, 115 Ga. App. 829 ( 156 S.E.2d 160), the court pointed out that the term "new lease" would include a completely new agreement employing drastic different terms so long as such lease covered the "same premises or any part thereof." The new lease was entered into prior to the expiration of the first lease in the Hunter case, supra.
In the case sub judice, although there were negotiations, no new lease was entered into and the original lease terminated. The Hunter case is therefore not controlling. Furthermore, it should be noted that the language used in the lease agreement as regards a new lease plainly does not include the tenancy at will which arose after the termination of such contract.
It is evident that none of the lease prerequisites were met. The lease terminated and there was no extension or new lease. The fact that the same parties continued a leasing arrangement or that the property was transferred from the estate to the heirs who subsequently entered into an agreement with the lessee or for that matter anything that occurred after the termination of the lease would be irrelevant. There is simply no language such as that found in Reynolds v. Tufts, 123 Ga. App. 147, supra, on which to base the agent's entitlement to continuing commissions. Indeed the language of the instrument in question evinces quite the contrary intent.
The trial judge properly granted the motion for summary judgment.
Judgment affirmed. Pannell, J., concurs. Hall, P. J., concurs specially.
I concur in the judgment, but not for the same reasons. The facts show that commissions were paid through the term of the original lease; that by its own terms the lease was not extended or renewed by the holding over; and that before another lease was made, the executrices had transferred the property to the heirs. I can see no theory of liability which would bind the executrices for commissions on property which has legitimately passed beyond any need for their administration.