(concurring).
I concur in affirming the judgment but desire to make the following observations. The provisions of 78-36-3, U.C.A. 1953, upon which the defendant relies in insisting that it was entitled to a notice in the alternative requiring it to pay the rent and meet the obligations under the lease or it would be terminated, appear to be designed to afford certain protections to tenants in possession. Subsection (3) provides that upon delinquency in rent a notice should be given requiring in the alternative either the payment of rent or vacation of the premises, and subsection (5) provides that where there is a breach of other covenants in a lease, a similar alternative notice to rectify the breach by performing within three days should be given.
These provisions are conditions precedent to the tenant becoming in unlawful detainer and the right of possession in the landlord. The main opinion sets out the provision of the lease, apparently interpreting it to state that upon re-entry for breach of the covenants it shall “absolutely determine.” That is, terminate. It is my opinion that such a tenant in possession could not properly be deprived of the protections afforded under the unlawful detainer statute by the landlord putting such provisions in a lease contract. The statute declares it to be the policy of our law to afford these protections to the tenant in possession.
In the present case the defendant has voluntarily vacated the premises and thus we are not concerned with the right to possession and the provisions of 78-36-3 relating to unlawful detainer are not applicable. The questions raised here pertain to the plaintiff’s right to the payment of rent for the period the defendant was in possession; and whether the lease was properly terminated for nonpayment so that the defendant lost its rights thereunder to exercise an option to purchase the premises.
It is unquestioned that the 1959 taxes on the property and the rent for February and March had not been paid when the plaintiff served the notice of March 24, 1960, to the effect that because of defendant’s failure to keep the covenants of the lease it was terminated. If the lease is construed to provide for termination only by re-entry, mere notice would not have been sufficient. The provision here in question is not so limited. Under the provision of the lease the lessor could terminate, *254without demand for rent, upon giving notice to the tenant of his intent to do so. This plaintiff did, and terminated defendant’s rights under the lease. Thus defendant’s attempt to exercise its option in November of 1961 was without effect. The .plaintiff would be entitled to the reasonable value of rent for the period defendant remained in possession. On the basis of the evidence there appears to be no difficulty in sustaining the trial court’s finding that $100.00 per month was reasonable.
The judgment should be sustained.