Alvin R. DIXON and Marvin C. Mills
v.
Thomas W. RIVERS and wife, Izabel B. Rivers, J. Carlton Parsons, Jr., and E. B. Aycock and wife, Jean H. Aycock.
No. 773DC671.
Court of Appeals of North Carolina.
July 11, 1978.*573 Stubbs & Perdue by Gary R. Perdue, New Bern, for plaintiffs.
Underwood & Manning by Sam B. Underwood, Jr., Greenville, for defendants T. W. Rivers and wife, Izabel B. Rivers, and E. B. Aycock and wife, Jean H. Aycock.
MARTIN, Judge.
The question presented by this appeal is whether the trial court erred in concluding, as a matter of law, that the subject lease agreement created a lease for a term of ten (10) years with a perpetual right of renewal for like terms, and that defendants are in lawful compliance with the terms of said lease.
In the case at bar, the lease in question provides in pertinent part as follows:
"1. This lease shall begin as of the date hereof and shall exist and continue for a period of 10 years.
"2. Upon the expiration of the abovementioned period of 10 years, if said property has been kept in a good state of repair, and if said parties of the second part so desire, this lease shall be renewed for an additional period of 10 years, and thereafter shall be renewable every 10 years for so long as parties of the second part so desire.
* * * * * *
*574 "5. This lease shall inure to the benefit of and be binding upon the parties hereto, their heirs, executors, administrators, and assigns."
Plaintiffs contend that the above language does not create a lease for a term of years, but, at most, creates a tenancy at will. In support of this contention, plaintiffs rely upon Barbee v. Lamb, 225 N.C. 211, 34 S.E.2d 65 (1945) (cases cited therein) where the Court held that when one "enters into possession of premises . . . under an agreement which is for an indefinite and uncertain term, (citation omitted), or for so long as the tenant may wish to occupy the premises, (citation omitted), he becomes a tenant at will." They argue that, in the instant case, the duration of the term was indefinite and uncertain in that clause two of the lease, as set forth above, allows the lease to last "for so long as parties of the second part so desire." While we recognize the principle enunciated in Barbee, we find such inapposite to the case at bar and, thus, cannot agree with plaintiffs' construction of the subject lease.
In Barbee and each of the cases cited therein, the use and possession of the premises was conveyed to the tenant for "so long as [he] and his family would live thereon" or "so long as [he] may wish to tend it himself." However, in none of these cases does language appear purporting to delineate the length of the term or providing for a covenant to renew such term. Clearly, the instant case is distinguishable. The language of the subject lease provides that the lease shall commence "as of the date hereof [15 July 1953]" and shall exist for a definite "period of 10 years." Such language clearly creates a lease for a term of ten (10) years. See Helicopter Corp. v. Realty Co., 263 N.C. 139, 139 S.E.2d 362 (1964). The effect of clause two is to create a covenant to renew the lease, upon expiration of the initial ten (10) year period, for a like term of ten (10) years. Pertinent to the covenant to renew created therein, clause two further provides, in clear and unequivocal language, that the lease "shall be renewable every 10 years for so long as parties of the second part so desire." We are of the opinion that this language, taken in conjunction with clause five set forth above unmistakably indicates the parties' intention to permit the lessees, and their heirs and assigns, to renew the lease perpetually.
Our courts have not been previously confronted with the construction and validity of perpetual leases or leases containing covenants for perpetual renewal. However, the generally accepted rule, followed by a majority of other jurisdictions, is that while the law does not favor a covenant to renew a lease perpetually, the covenant will be enforced where the language of the lease unmistakably indicates that the parties intended to provide for such renewal. See Annot., 31 A.L.R. 2d 607. Inherent in this general statement of the law, and equally well settled as law, is the proposition that a covenant for perpetual renewal does not contravene the rule against perpetuities. Simes, The Law of Future Interests, § 132 (2d ed. 1966); Annot., 162 A.L.R. 1147 (cases cited therein). There is no violation of the rule against perpetuities because the covenant to renew is a part of the lessee's present interest in the leasehold, a vested interest; hence, it is not open to objection for remoteness of vesting. Gray, The Rule Against Perpetuities, § 230 (4th ed. 1942); see Annot., 66 A.L.R. 2d 733. Accordingly, we find no error in the trial court's conclusion, as a matter of law, that the subject lease is a lease for a term of ten (10) years with a valid and enforceable covenant for perpetual renewal.
In addition, we concur with the trial court's conclusion of law that there exists no genuine issue of material fact as to whether defendants are in compliance with the terms of said lease and, therefore, in lawful possession of the leasehold. Plaintiffs admit in their complaint that, prior to their purchase of the subject land, they were aware of defendants' leasehold interest in and possession of a certain parcel of the subject tract. In fact, plaintiffs' deed to this land contains an express exception alerting them to the existence of the lease agreement with defendants. We note also *575 that in their answers to defendants' request for admissions, plaintiffs admit that payment of the annual rent, due on or before 15 July 1976, was duly tendered by defendants in apt time and well before 15 July 1976. Finally, we find of particular importance the parties' stipulation of 15 February 1977 that
"[A]t all times beginning from the date of July 15, 1953, and thereafter, payment of the annual rent duly due under the terms of the lease dated July 15, 1953,... was duly tendered by [defendants] to plaintiffs' predecessors in interest and that since said date of July 15, 1953, defendants Thomas W. Rivers and wife, Izabel B. Rivers, have maintained all buildings and improvements on said property in a good state of repair."
Based on our construction of the lease and on the above pleadings, admissions and stipulations, we find that there is no genuine issue of material fact as to the lawfulness of defendants' possession under the lease. Summary judgment was, therefore, properly entered in defendants' favor.
Affirmed.
VAUGHN, J., concurs.
MORRIS, J., dissents.