Majority
It is not necessary, in view of our decision on the first point, to deal with the other grounds urged by the TowmNSIP respondent.
We therefore reach the conclusion that this appeal HoLNGa should be dismissed with costs.
MINES LfD.
Judgment of the Court
LAMONT J.-This is a friendly action and the facts are not in dispute. The question involved in the appeal is the proper construction of a covenant in a lease made between the appellants and the respondent's predecessor in title which provides for its renewal. The covenant reads as follows:- It is hereby agreed that this Lease and the term hereby created shall at the option of the Lessees be renewed (1) for such further term as the Lessees may require the said bedrooms and the hallway for use in connection with the said, hotel, and whether used as an hotel, boarding-house ar apartment house; (2) and for such further term as shall correspond with the term of any lease that may be given by the said Lessees to any tenant in respect of the said hotel premises and (3) thereafter from time to time so long as the said bedrooms may be required for hotel, boarding-house or apartment house purposes at a rental equivalent to oneeighth part or portion of the rental received from time to time for the said hotel, boarding-house or apartment house.
The numbers (1), (2) and (3) set out above are not in the covenant but were inserted by the trial judge for convenience, and have been here retained.
The leased premises consist of sixteen bedrooms and a hallway in the respondent's building immediately adjoining the appellants' hotel in the Town of Lindsay, Ontario, and have, for some years, been used in connection with the hotel.
The respondent contends that " the covenant is too vague and indefinite to create a right of renewal, that it does not (1) (1932) Ont. W.N. 204.
give the appellant any such right and is void for uncertainty." On the other hand the appellants submit that so long as the term of each renewal lease can be made certain at the time the lessees call for it, that is sufficient to meet all the requirements of the law regarding certainty. It has been long established that a covenant in a lease, which provides for a renewal of the term, in order to be Lamont valid must designate with reasonable certainty the date of the commencement and the duration of the term to be granted. This certainty as to duration must appear from the express limitation of the parties or from reference to some collateral matter-itself certain or capable of being made so before the lease takes effect-which may, with equal certainty, be applied in measurement of the continuance of the term.
The trial judge construed the clause as being sufficiently certain to give the appellants, as lessees, a right of renewal. He said:- He thus construed the first part of the covenant, that is (1), as though it read: " For such further term as the lessees may request or demand." Had that been the language of the clause, it would not, in my opinion, have offended against the rule requiring certainty, for the duration of the term would be made certain by the request or demand for renewal. That, however, is not the language of the clause. The term provided for in (1) is whether it is used as a hotel, boarding-house or apartment house. While that provided for in (2) and (3) is the period covered by a lease or leases granted by the lessees from time to time so long as the bedrooms may be required for hotel, boarding-house or apartment house purposes. It is the phrases " require
* * * for use " and " may be required for hotel, boarding-house or apartment house purposes " which manifest the purport of the words " require " and " required," and shew that the notion expressed is rather that of " need " than that of " request " or " demand." I think it is quite clear from the language used S.C.R.]