2004-314, DAVID A POPE & a. v. NANCY MORAN LEE

opinion. We now reverse. reconsideration. We granted that motion in part, and withdrew our original 8, 2005, reversing the superior court. The plaintiffs filed a motion for renewals of the lease, she was a tenant at will. We issued an opinion, on April Woodie 1 990 Revocable Trust, did not confer upon her the right to perpetual individually and as trustees of the David A. Pope 1990 Revocable Trust and the between herself and the plaintiffs, David A. Pope and Suzanne M. Pope, the Superior Court (Coffey, J.) ruling that because a 1998 lease agreement BRODERICK, C.J. The defendant, Nancy Moran Le e, appeals an order of

Macdonald on the brief, and Mr. Keane orally), for the defendant. Taylor & Keane, P.C., of Portsmouth (Thomas M. Keane and Douglas W.

orally), for the plaintiffs. Flagg Law, PLLC, of Port smouth (Jonathan M. Flagg on the brief and

No. 2 004 - 314 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the Town Of North Hampton to court over the “menu” issue. It is [The plaintiffs are] curre ntly proceeding with [their] plans to take

provided: base year amount of $8,648. p. 2 22. A “rental modification” clause in the lease was responsible for fifty percent of any real estate tax increase above the 1998 The lease also contained a “tax escalator” clause, under which the defendant

of our children wish to operate the stand. This clause would only take effect in a desperate situation as none source of survival income, then the lease would terminate. NOTE! be forced by necessity to operate the icecream [sic] stand as a [sic] of our four children should be beset by a financial crisis and subject to the following clause[:] In the unlikely event that anyone lease will not be renewed. Any automatic lease renewal must be [The defendant] m ust notify [the plaintiffs] by February 1 if the st be either the US CPI or the BOSTON CPI or an average of both. INDEX” mutually agreed upon by [the parties]. The CPI Index can calculated using the applicable “CPI [consumer price index] all subseq uent lease years after this rent increase shall be larger menu. After said increased [sic] has been established, then to reflect [the defendant’s] flexibility in offering to its customers a courts to be in favor of [the plaintiffs], the rent shall be increased New Hampshire on July p. 2 27, 1998. If the case is determined by the the legal action being taken against the Town Of North Hampton, The lease payment schedule will be determined by the outcome of and automatically thereafter with certain exceptions stated herein. The [defendant] shall have the option to renew this lease in 1999

to Renew,” provided: extending to November 15, 1998. Article p. 2 2.2 of the 1998 lease, entitled “Option approximately six and one - half months, starting on May 1, 1998, and On July 22, 1998, the parties executed a new lease that ran for

( p. 2 2000). offered on the premises. See Pope v. Little Boar’s Head Dist., 145 N.H. 5 p. 3 31 occasions, unsuccessfully applied for a variance to expand the food menu ending in December. Between 1993 and 1997, the plaintiffs, on several and the last three of which ran for eight - month terms starting in May and annual lease agreements, most of which contained virtually identical terms, defendant leased the premises from 1993 to 1997 under several different in North Hampton and known as the “Beach Plum Ice Cream Shop.” The The plaintiffs own a seasonal ice cream and food service establishment located The following facts were found by the trial court or appear in the record. 3

rental increase provision: contained both a rental increase and a rental adjustment clause. Under the amendment was “made part of the lease agreement dated July 22, 1998” and this time by executing a document entitled “Lease Amendment.” The 2000 On April p. 3 3, 2000, the parties again renewed the 1998 lease agreement,

favorable judgment in the menu litigation with the Town of North Hampton. additional $1,500 in rent as a result of the plaintiffs having obtained a modification provision in the 1999 lease, the defendant paid the plaintiffs an treated the 1999 lease as a renewal of the 1998 lease. Pursuant to the rental changes and the fact that only the defendant signed the lease, the parties which were initialed by both parties. Despite the lack of mutually initialed The 1999 lease contained several handwritten changes, only some of

the same.” [sic] ‘option’ rather than ‘right,’ but the terms and general conditions will stay the 1999 lease and which read, in relevant part: “The lease shall use the words from David Pope to the defendant, which discussed several items appearing in foregoing note. Additionally, the record contains a letter dated June 14, 1999, to March 15 of any year.” Both the defendant and David A. Pope initialed the th defendant] provides the [plaintiffs] with notice of [her] intent to terminate prior “The lease shall automatically renew each and every year u nless [the referred to a handwritten note inserted below the renewal provision that read: was initialed only by the defendant. An asterisk at the end of the sentence word “option” was crossed out and the word “right” was written in, the change automatically thereafter with certain exceptions stated herein.” Although the lease: “The [defendant] shall have the option to renew this lease in 2000 and 1999 lease, the renewal provision, was, in substance, identical to the 1998 and was signed only by the defendant. The first sentence of article 2.2 of the agreement contained substantially the same provisions as the 1998 agreement, The defendant again leased the premises in 1999. The 1999 lease

1998 term. therefore, the defendant paid the plaintiffs $17,000 to rent the premises fo r the The plaintiffs did not receive a favorable judgment by August 10, 1998, and,

this clause is null and void for the 1998 season. not rendere d by August 10, 1998 allowing a menu change, then th “season” shall therefore be $18,000. If a favorable judgement is an additional $1,000 of rental. The gross adjusted rental for the offer other food items, [the defendant] agrees to pay [the plaintiffs] judgment to change the m enu and thereby allow the [defendant] to [defendant] that should the [plaintiffs] be awarded a favorable understood and agreed upon by both the [plaintiffs] and the p. 4 4

was by mutual consent of the parties, not any entitl ement by the in 1999, and any renewal of the terms of the 1998 lease after 1999 section 2.2 conferred upon the [defendant] the right to one renewal [T]he Court concludes that the language of the option to renew in

give the defendant such a right: three - day bench trial, the court ruled that the 1998 lease agreement did not upon the defendant a right to perpetual renewals of the lease. Following a oth er things, a determination that the 1998 lease agreement did not confer judgment action against the defendant in the superior court, seeking, among refused the plaintiffs’ terms. The plaintiffs then brought a declaratory discussions regarding the 2002 lease agreement, the defendant ultimately established in the 1998 lease agreemen t and addenda. After several terms of the 2002 lease, and refused to pay rent above the amounts The defendant informed the plaintiffs that she did not agree with the

defendant, at the end of each season, renewal for the following year. renew provision, and the plaintiffs explained that they would discuss wi th the increase from the previous year. The 2002 lease did not contain an option to seven months, and established the rent at $30,000, an approximate $9,000 2002 lease agreement extended the lease term from six and one - half months to forwarded to the defendant a new lease agreement for the 2002 term. The the premises. On April 15, 2002, the plaintiffs, through their attorney, the plaintiff s were permitted to expand the menu to serve additional items on into a settlement agreement to resolve the menu litigation, pursuant to which In July 2001, the plaintiffs and the Little Boar’s Head District entered

pursuant to the legal issues surrounding the food menu.” plaintiffs or their agent would be forwardin g to the defendant “new language contained rent and tax figures for the 2001 season only, and specified that the and the Lease amendment dated April 3, 2000.” The 2001 addendum addend um was “made part of the lease agreement executed on July 22, 1998 executing a document titled “Ice Cream Shop Lease Addendum.” The 2001 On June 1, 2001, the parties renewed the 1998 lease a third time by

Little Boar’s Head District. payments in the event this court reversed the trial court’s decision in Pope v. The rental adjustments section provided for a prorated decrease in rental

in the 1998 lease agreement. p. 5 50% share in any [real estate] tax increase shall remain as stated alleviate any confusion over “how” to calculate the increase. The season rental year” AND for future rental seas ons. This will be calculated at a 3.5% annual increase for the “2000 summer Both parties agree that the annual increase in “base rental” shall 5

right because “the agreement of the parties clearly showed such an intent.” Id. thereafter. We conclude that the lease agreement gave the defendant such a gave the defendant the right to renew the lease agreement in 1999 and adopt the Bussiere standard for determining whether the lease in thi s case show[s] such an intent.” Bussiere v. Roberge, 142 N.H. 90 p. 5 5, 909 (1998). We absence of formal language in the grant, the agreement of the parties clearly “[enforce] parties’ intent to create a perpet ual leasehold where, despite the In the context of perpetual leaseholds, we have stated that we will

N.H. Water Res. Council, 1 p. 5 51 N.H. at 215. determine the parties’ intent from the plain meaning of the language used. understood by reasonable people and, in the absence of ambiguity, we will (2004). We will give the language used by the parties its common meaning as agreement de novo, see LeTarte v. West Side Dev. Group, 151 N.H. 291, 294 N.H. 214, 215 (2004), we review the trial court’s interpretation of a lease a term is ambiguous, see N.H. Water Res. Council v. Steels Pond Hydro, 151 a matter of law for this court to decide, including the determination of whether N.H. 205, 206 (2004). Because the meaning of a lease agreement is ultimately standard rules of contract interpretation. 190 Elm St. Realty v. Beaudoin, 151 A lease is a form of contract that is construed in accordance with the

agree. to renewals in 1999 and thereafter without the need for additional writing. We a right to perpetual renewals, it nevertheless, by its plain language, entitled her the trial court erred because although the 1998 lease agreement did not create concluding that the defendant was a tenant at will. The defendant argues that determined that the lease did not create a right to per petual renewals, erred in renewals. Rather, the issue we must resolve is whether the trial court, having court correctly ruled that the lease does not create a right to perpetual be upheld. Consequently, w e are not asked to determine whether the trial to the appeal, agree, and maintain that the trial court’s ruling should therefore the 1998 lease agreement is not a perpetual lease. The plaintiffs, in objecting renewals. Indeed, the defendant’s appeal is based upon her contention that 1998 lease agreement did not confer upon the defendant the right to perpetual On appeal, the parties do not challenge the trial court’s ruling that the

This appeal followed.

tenant since the expiration of the 2001 term. that year’s term. In short, the [defendant] has been a holdover the premises terminated November 1 p. 5 5, 2001, with the expiration of renewal of the 1998 lease, the [defendant’s] right to possession of [defendant] to perpetual renewals. Under the terms of the 2001 p. 6 6

certain if the lessee wishes to renew a lease. However, if the defendant, the exercising an option; typically, the les see must notify the lessor by a date with the term “option.” The term “automatically” reverses the usual burden of 2.2 ambiguous. We disagree. In this context, the term “right” is synonymous renew,” rather than “ri ght to renew,” renders the term “automatically” in article The plaintiffs next contend that the parties’ use of the clause “option to

continual renewals of the lease. Therefore, we reject the plaintiffs’ argument. pl ainly and unequivocally reflects the parties’ intent to create a right to common meaning of the term “automatically,” read in the context of article 2.2, having to review new documents every year. As discussed, however, the form as that used in 1998 for the 1999 term and thereafter, to save them from construed as merely demonstrating the parties’ inte nt to use the same lease The plaintiffs argue that article 2.2 is ambiguous because it could be

the defendant is not entitled to renew the lease in 1999 and thereafter. conclude that none of the issues raised by the plaintiffs warrants a finding that Bussiere, 142 N.H. at 909, we address their arguments. In doing so, we we use to decide whether a lease agreement creates a perpetual leasehold, see l ease in this case created a right to continual renewals is similar to that which thereafter. However, because the standard we employ to decide whether the agreement gave the defendant the right to renew the lease in 1999 and agreement creates a perpetual leasehold. We have determined that the lease upon the premise that the issue in th is case is whether the 1998 lease agreement demonstrate ambiguity. The plaintiffs’ arguments are all based the lease; and (5) the parties’ actions subsequent to executing the 1998 lease perpetually ren ewable lease; (4) the amount of future rent is not established in opposed to a right, to renew; (3) multiple provisions in the lease conflict with a review new documents every year; (2) the lease provides for an option, as in 1998 for each term of the lease thereafter, to save them from having to (1) it could indicate the parties’ intent to use the same lease form as t hat used The plaintiffs argue that the term “automatically” is ambiguous because:

shall be automatically renewed”). every 10 ye ars at lessee’s discretion, where renewal provision stated that “lease Petition, 125 N.W.2d 482, 485 (Mich. 19 p. 6 63) (finding perpetual lease, renewable parties intended to create a right to continual renewals. Cf. In re Mackie’s the context of article 2.2, plainly and unequivocally demonstrates that the volition.” Id. Thus, the common meaning of the term “automaticall y,” read in that any activity of the will is largely negligible: of a reflex nature: without 2002). “Automatic” means “involuntary either wholly or to a major extent so intention.” Webster’s Third New International Dictionary 148 (unabridged ed. “automatically” means “in an automatic manner: without thought or conscious this lease in 1999 and automatically thereafter.” In common usage, the term Article 2.2 prov ides that the defendant “shall have the option to renew p. 7 7

renewals. That provision states: The plaintiffs also cite article 5.5 as conflicting with a right to perpetual

construed as defeating that intent. to continual re newals, a restriction on a lessee’s use of property should not be and unequivocally indicates the parties’ intent to confer upon a lessee the right Moreover, it appears to us that where, as here, the language of a lease plainly long as the use does not violate the law, he or she has the right to do so. a lessor wishes to put the property to a certain use and maintain that use, s o confines of the law, and that any lease be subject to those restrictions. Thus, if his or her property be restricted to any use that he or she sees fit, within the This reasoning does not persuade us. A property owner may require that

Geyer, 103 N.E.2d at 201.

purposes. might make the property much more useful and valuable for other regardless of whether, after the passing of many years, the location tie up this property forever for one par ticular and narrow use, in perpetuity. Construed as a lease in perpetuity it could serve to seem to be a covenant such as one would expect to find in a lease “conducting a general merchandising business,” which would not The use to which the lessee may put the premises is restricted to

1982). In Geyer, the court explained its conclusion: Bay Prop. v. Silverdale Sportsman’s Center, 648 P.2d 465, 46 p. 7 7 (Wash. Ct. App. 20 1 (Ind. 1952); Drink, Inc. v. Martinez, 556 P.2d 348, 352 (N.M. 1976); Oak contemplate perpetual renewals. See, e.g., Geyer v. Lietzan, 103 N.E.2d 199, the lessee’s use of the premises indicates that the parties to the lease did not several States have concluded that a lease provision imposing a restriction on with the notion that article 2.2 creates a right to perpetual renew als. Courts in occupy the premises for the sole purpose of retail sales of food items,” conflicts of the property contained in article 4.1, requiring that the defendant “use and with a perpetually renewable lease. They argue that t he restriction on the use Next, the plaintiffs contend that multiple provisions in the lease conflict

render article 2.2 ambiguous. Accordingly, the parties’ use of the term “option,” rather than “right,” does not instances, however, whether to renew the lease is an option left to the les see. causes a lease to expire, it renews the lease in the latter instance. In both chooses not to renew the lease. Thus, while silence in the former instance not do anything. She only needs to notify the plaintiffs by a date certain if she lessee in this case, wants to renew her lease with the plaintiff lessors, she need p. 8 8

months, commencing on May 1, 199 p. 8 8, and ending on November 15, 1998. Article 2.1 of the 1998 lease agreement defines “the term” as six and one - half

occupancy. of the term, prorated and payable for the period of such herein contained [in] the rental in effect during the last Lease year month to month upon the covenants, provisions and conditions Lease, but such occupancy shall continue as a tenancy at will from occupancy shall not be deemed to extend or renew the term of this the demised premises after the expiration of the term, such In the event that [the defendant] shall continue in occupancy of

argue that it conflicts with a right to perpe tual renewals. Article 17 provides: Finally, the plaintiffs cite to article 17 of the 199 p. 8 8 lease agreement and

defendant the right to renew the lease in 1999 and thereafter. these cir cumstances does nothing to change the fact that article 2.2 grants the to continual renewals. Therefore, the provision for a “term” of the lease under agreement, regardless of whether the lease agreement purports to grant a right seasonal property justifies the need for a “term” to be defined in the lease agreement. We disagree, and find that the very nature of the prop erty as a because the property is seasonal, there is no need for a “term” in the lease conflicts with a right to perpetual renewals. Specifically, they assert that The plaintiffs argue that article 2.1, pr oviding for a “term” of the lease,

of whether a lease creates a right to continual renewals. excepted. Thus, we see no conflict between articles 2.2 and 5.5 in the context prop erty in as good a condition as when the lease commenced, wear and tear Article 5.5 accomplishes this by requiring that the defendant maintain certain construe article 5.5 as simply protecting the plaintiffs’ property interests. to perpetual renewals. See id.; Drink, Inc., 556 P.2d at 352. However, we condition as when originally let have been construed as conflic ting with a right Provisions requiring a lessee to return the premises to the lessor in as good a

commencement of this Lease. suitable, tenantable and in good condition as it was at the personal property of the [plaintiffs] therei n in anything less than [defendant] to keep the premises and equipment and other reasonable wear and tear shall not apply so as to permit the reasonable wear and tear accepted [sic]. The exception of doors, floors, ceilings, int erior walls, painted or otherwise; plumbing, sewerage, air conditioning, wiring, glazing, windows, portions of the premises, including but in no way limited to all a clean and sanitary condition and a good state of repair, all other [The defendant] shall at [her] sole cost and expense maintain in p. 9 9

article 2.2 of the 1 p. 9 998 lease agreement, the defendant has the right to In sum, we hold that based upon the plain and unequivocal language of

on the renewal provision. continual renewals negates that right where the amendments have no bearing offer no explanation as to why amending a lease that creates a r ight of agreement in 1 p. 9 999. As for the amendments to the 1998 lease, the plaintiffs 2000 and 2001. Thus, we find it irrelevant that the parties negotiated a lease lease agreement in 1999, however, they reve rted to the 1998 lease agreement in lease. She did not.” Regardless of the fact that the parties negotiated a new already [had] a long term lease and there [was] no reason to negotiate a new 1998 lease agreement was “long term,” she “could have said in 1999 that she for the 1999 lease, the plaintiffs contend that if the defendant truly believed the amendments to the 1998 lease. We are not persuaded by this argument. As new lease in 1999, and then executed, without consideration, several subsequent to executing the 1998 lease agreement, the parties nego tiated a The plaintiffs next argue that article 2.2 is ambiguous because,

reputable person”). was to be “the same rental as may have been offered Lessor by any other provision “too vague, indefinite and uncertain to be enforceable” where rent McCormick v. Brockett, 306 S.E.2d 344, 345 - 46 (Ga. Ct. App. 1 p. 9 983) (renewal where formula for rent was capable of being reduced to a “sum certain”), with Square v. PEK Corp., 670 P.2d 51, 53 (Idaho 1983) (renewal clause enforceable that the 1998 lease agreement establishes future rent. Compare Giacobbi payment calculation for the 2001 term. Our review of these provisions reveals 1998 lease agreement.” The 2001 addendum simply breaks down the rental amendment, “[t]he 50% share in any tax increase shall remain as sta ted in the term “and for future rental seasons.” Furthermore, according to the 2000 which rent was to increase at a rate of 3.5 percent per year for the 2000 rental expressly made part of the 1998 lease agree ment, contained a provision under menu litigation by August 10, 1998. The 2000 amendment, which the parties $1,000 in the event that the plaintiffs received a favorable judgment in the 21 contained a r ental modification provision that increased the 1998 rent by agreement set forth the lease payment schedule for the 1998 term, and article amount of future rent is not established therein. Article 3.2 of the 1998 lease Next, the plaintiffs argue that the lease is ambiguous because the

the premises, she would be a tenant at will under the terms of artic le 17. proper notice. Should she choose not to renew, and should she fail to vacate year, opt not to renew her lease of the premises by providing the plaintiffs 2.2 creates a right to continual renewals. T he defendant could, in any given We conclude that article 17 does not conflict with the notion that article p. 10 10

Horse Pond Fish & Game. defendant the right of continued renewals does not offend the law stated in legitimate justifiable interests, the 1998 lease agreement granting the and citations omitted). Even assuming the plaintiffs are the only parties with Horse Pond Fish & Game Club v. Cormier, 133 N.H. 648, 653 (1990) (quotation

will be held invalid. interests of the parties. C orrespondingly, unreasonable restraints enforceable they must be reasonable in view of the justifiable alienation are contrary to this policy of freedom of alienation, to be essential to the welfare of society. Because all restraints against freedom to alienate property intere sts which one may own is Much of modern property law operates on the assumption that

In Horse Pond Fish & Game Club, we stated:

or the business.” been unable to identify or quantify any significant investment in the property term lease to be able to recover her investment in the business .. . [she] has rent.” They state that although the defendant “indicated she wanted a long are “free to be sold, to be refinanced, or to gain a higher income from increased parties. They describe their justifiable interest s as ensuring that the premises argue that article 2.2 is not reasonable in light of the justifiable interests of the Next, relying on Horse Pond Fish & Game Club v. Cormier, the plaintiffs

established in the lease. material term. We disagree. As discussed, the amount of future rent is clearly leave the issue of rent to future negotiations, the lease fails for want of a The plaintiffs argue that because the lease and amendments thereto

address each of the plaintiffs’ contentions in turn. determined that the Bussiere standard applies to continual renewals, we we have determined is not at issue in this case. However, because we have above, these contentions are framed in terms of a perpetual leasehold, which lack of a meeting of the minds. As with the plainti ffs’ arguments discussed of the lease, thereby terminating the lease; and (6) the option to renew fails for unconscionable; (5) the defendant rejected the renewal and breached the terms (3) the option to renew fails for lack of consideration; (4) the option to renew is (2) article 2.2 is not reasonable in light of the justifiable interests of the parties; affirm the trial court because: (1) the lease fails for want of a material term; defendant the right to perpetual re newals of the lease, we should nevertheless The plaintiffs contend that even if we conclude that article 2.2 gave the

matter of law in ruling that the defendant is a tenant at will. continually renew her lease of the premises. Thus, the trial court erred as a p. 11 11

the Town of North Hampton, a single $1,500 increase in rent renders the lease plaintiffs’ claim th at after spending over $10,000 litigating the menu issue with renew, does not render the lease agreement unconscionable. Furthermore, the property for as long as she likes, and may choose, in any given year, not to discretion. Accordingly, the fact that the defendant may renew her lease of the an option granted to a lessee by a lessor, and is maintained at the lessee’s We disagree. By its very nature, an option to renew belongs to the lessee: it is

and therefore unenforceable. true, would make the contract between the parties unconscionable in the amount of $1,500 as a result of said lawsuit. Both claims, if suing the Town of North Hampton, can only increase her rent once claims that the [plaintiffs], after spending in excess of $10,000 from the property in any year she so chooses. [The defendant] property to her for as long as she wants it, but she is free to walk [The defendant] claims that the [plaintiffs] must lease the

therefore unenforceable: The plaintiffs next argue that the option to renew is unconscionable and

considera tion for lease). (general rule is that option to renew contained in lease is supported by banc); Parham v. Glass Club Lake, Inc., 533 S.W.2d 96, 97 (Tex. App. 1976) Metropolitan Park Dist. v. Griffith, 723 P.2d 1093, 1099 (Wash. 1986) (en agreement. Therefore, no additional consider ation was required. See plaintiffs ignore the fact that the renewal provision was part of the 1998 lease to lease that could later be withdrawn. In arguing this point, however, the was required to render th e provision a binding agreement rather than an offer was executed part way through the 1998 lease term, additional consideration consideration. Specifically, they maintain that because the renewal provision Next, the plaintiffs contend that the option to renew fails for lack of

demand sufficient rental increases. defendant on the basis that they now, in hindsight, believe that they did not themselves of a binding agreement to confer continual renewals upon the increase provisions into the 1998 lease agreement. They cannot now relieve increased rent, we note that, as discussed, the plaintiffs incorporated rental argument that they have a justifiable interest in gaining a higher income from property should the defendant have a right to continual renewals. As to their discussion as to why they believe they would not be able to refi nance the fully in operation and occupied by a paying tenant. The plaintiffs offer no believe that potential buyers may desire to purchase a business that is already foreclose the plaintiffs from selling the pr emises. It is not unreasonable to The defendant’s right to renew the lease in 1999 and thereafter does not p. 12 12

increased rent and taxes. we conclude that the defendant did not breach the lease by failing to pay because there was no incr ease in taxes from the previous year.” Accordingly, “would have no effect on the [defendant] for the 2002 term, presumably proposed 2002 lease stated that the tax escalator clause contained in the lease To the contrary, the trial court found that a cover letter that accompanied the increased taxes on the property as required under the 1998 lease agreement. Furthermore, the record does not reveal that the defendant failed to pay

increased rent according to the terms of the plaintiffs’ 2002 offer. Nothing in the provisions recounted abov e obligated the defendant to pay [did] NOT address any other financial issues, or judicial food menu decrees.” the addendum “focus[ed] solely on the 3.5 percent annual rental increase and issues surrounding t he food menu.” Additionally, paragraph four specified that agent would forward to the defendant “new language pursuant to the legal Paragraph four of the 2001 addendum provided that the plaintiffs and their

days; (JUNE, JULY, AUGUST.) “period of time” used to calculate the pro - rata amount shall be 90 adjusted downward on a pro - rata basis not to exceed $1,500. The “to” only selling hot dogs, then in this event, the rent shall be “permitting the ice cream shop” to sell an expanded food menu In the unlik ely event the Supreme court reverses its decision from

incorporated into the 1998 lease agreement, provided, in relevant part: favorable judgment in the menu litigation. The 2000 amendment, expressly the plaintiffs an additional $1,500 in rent because the plaintiffs received a modification clause contained in the 1999 renewal lease, the defendant paid favorable resolution of the menu litigation. In 1999, pursuant to a rental The defendant was not obligated to pay increased rent as a result of the

property i n 2002 as required by the 1998 lease agreement. nevertheless breached the lease by failing to pay increased taxes on the that even if the defendant was not obligated to pay increased rent in 2002, she 2001 in favor of allowing an expanded menu on the premises. They maintain pay increased rent, despite the plaintiffs having resolved the m enu litigation in terminating it. Specifically, they note that in 2002, the defendant refused to because the defendant rejected the renewal, thereby breaching the lease and Next, the plaintiffs contend that the renewal provision is unenforceable

rental season and thereafter. provides for an annual three and one - half percent increase in rent for the 2000 Additionally, the 2000 amendment, made part of the 1998 lease agreement, increase provision that renders the l ease agreement unconscionable. unconscionable, is not persuasive. There is nothing on the face of the rental p. 13 13

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

did not create a right to perpetual renewals, the defendant was a tenant at will. N.H. at 909. Thus, the trial court erred in concluding that because the lease parties intended to create a right to continual renewals. S ee Bussiere, 142 agreement in its entirety reveals that the agreement clearly shows that the right to continual renewals. Accordingly, our review of the 1998 lease determined, a plain reading of arti cle 2.2 reveals the parties’ intent to create a plaintiffs conflict with the notion of continual renewals. Moreover, as continual renewals. As discussed, none of the lease provisions cited by the perpet ual leasehold; the issue is whether they intended to create a right to stated, the issue in this case is not whether the parties intended to create a intended to confer upon the defendant the right to perpetual renewals. As enforceable because the evidence in this case reveals that the plaintiffs never Finally, the plaintiffs maintain that the renewal p rovision is not

argue, leave the issue of rent open to future negotiations. disagree. As discussed, the parties agreed on rent and did not, as the plaintiffs of the minds because re nt, an essential term, was left open for negotiation. We The plaintiffs argue that the renewal provision fails for lack of a meeting