dissenting.
I respectfully dissent because the motion justice who dismissed the District Court appeal filed by the petitioners, S & J 351, Inc., and Prinz Eugen, Ltd. (collectively, the lessee), failed to consider the effect of the parties’ course of performance during the lease term on the rental due-date provisions of the written lease. This omission could materially affect any decision on whether the lessee’s rent payments were timely during the District Court appeal.3 Therefore, I would grant the lessee’s petition for certiorari and remand this case to the Superior Court for an evidentiary hearing to determine the effect of the parties’ conduct on when rent was due under the lease. See Arcade Co. v. Kentco, Inc., 592 A.2d 135, 137 (R.I.1991) (“We are not stating that all leases require a landlord’s possession of payment on the payment’s due date. Although such is the norm, it is a practice that could be varied explicitly by contract 'or implicitly by, for example, examining the conduct of the parties.”) (Emphasis added.)
In rendering his decision, the motion justice stated:
“I think that the issue was that the money was to be tendered on the due date and the due date is to be determined by the preexisting lease. I’m not persuaded * * 15 that [lessee] had 15 days grace period. The statute says it shall be paid on the due date. [Lessee] says the due date is within the first 15 days of each month and I think the terms of the lease are fairly consistent. One, the sublease says on the first day of each month and the main lease says on the first business day of each month. Certainly that doesn’t mean the 15th day of the month. The tenant had a right not to be in default on the lease until he was more than 15 days in arrears. That’s usually put in the lease because the statute says you can’t bring an action for nonpayment of rent until it is at least 15 days in arrears and you have a month to month tenancy.” (Emphasis added.)
Unfortunately the motion justice focused solely on the rental payment due-date terms in the written lease. He never considered the relevance of the parties’ conduct in interpreting these terms, and he failed to consider whether these due-date terms had been waived or modified during the lease by the parties’ course of performance in tendering and accepting rental payments after the first but before the fifteenth day of the month. Not only did the lessee assert that such an alteration had in fact occurred but the evidence presented below prima facie supported its assertion.4
*669In Arcade, this court made clear that “[w]e are not stating that all leases require a landlord’s possession of payment on the payment’s due date. Although such is the norm, it is a practice that could be varied explicitly by contract or implicitly by, for example, examining the conduct of the parties.” 592 A.2d at 137 (Emphasis added.) Although we have never squarely addressed this question, other jurisdictions recognize that the parties’ course of conduct may be relevant in interpreting the rental-payment-due-date provisions of a lease and that the parties’ conduct may actually support an alleged waiver or modification of the payment due date specified in the lease. See, e.g., Protean Investors, Inc. v. Travel, Etc., Inc., 499 So.2d 49, 50 (Fla.Dist.Ct.App.1986) (landlord may not enforce terms of lease regarding rental payments after continued acceptance of late payments); Versailles Arms Apartments v. Pete, 545 So.2d 1193, 1195 (La.Ct.App.1989) (the lessor regularly accepted late rent payments from the lessee, and “such custom ha[d] the effect of altering the original contract with respect to punctuality of rent payments”); Spencer v. Blackmon, 22 Ohio Misc.2d 52, 490 N.E.2d 943, 945 (Mun.Ct.1985) (“[t]he continued acceptance by the landlord of a tenant’s late rental payments * * * results in a waiver of the requirement of timely payment”).
Given our acknowledgment in Arcade that rental-payment terms in a written lease can be interpreted in light of or even implicitly modified by the parties’ course of performance during the lease term, I believe the motion justice should have considered the parties’ past conduct with respect to the rental payments and its potential interpretative or modifying effect on the due date for rent during the pendency of the appeal. If the parties’ conduct modified the due-date terms of the lease agreement, then it would be improper to dismiss the lessee’s appeal for having made rent payments within the same period as had been previously accepted by the lessor during the leasehold.5
The majority labels such an interpretation of Arcade “strained” and apparently seeks to distinguish that case by contrasting the lease language in Arcade with the lease language here. But since the parties may have waived or altered the rental-due-date terms of the lease agreement by their course of performance, differences in the rental-payment language of the Arcade lease and this one are not as significant as the parties’ conduct. Therefore, the motion justice’s interpretive calculus should have included the conduct of the parties and not just the written lease’s first-day-of-the-month due-date language.
The conduct evidence adduced below strongly suggests that rental payments were tendered and accepted between the first and the fifteenth day of each month for over a year. If so, then the lessee’s rental payments made within this same time frame during the pendency of the appeal were in fact “paid at such times and in such amounts as rent would be due and payable were the action then not pending.” General Laws 1956 § 34-18.1-18. Absent an evidentiary inquiry into the parties’ course of performance, I believe it was reversible error for the motion justice to conclude that the terms of the written lease, standing alone, determined whether the lessee’s rental payments during pendency of this appeal were timely. Thus, I would grant the petition for certiorari, quash the motion justice’s decision dismissing the appeal, and remand this matter for an evi-dentiary hearing concerning the effect of the parties’ conduct with respect to the lessee’s *670tender and the lessor’s acceptance of rental payments during the term of the lease on the interpretation of the written lease’s due-date provisions.
. A review of the parties’ prior conduct concerning rent payments is relevant to aid in the court's interpretation of the lease terms, just as it is in the case of interpreting an agreement for the lease of goods. See G.L.1956 § 6A-2.1-207:
“Course of performance or practical construction. — (1) If a lease contract involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the lease agreement.
“(2) The express terms of a lease agreement and any course of performance, as well as any course of dealing and usage of trade, must be construed whenever reasonable as consistent with each other; but if that construction is unreasonable, express terms control course of performance, course of performance controls both course of dealing and usage of trade, and course of dealing controls usage of trade.
"(3) Subject to the provisions of § 6A-2.1-208 on modification and waiver, course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance." (Emphases added.)
Subsection (3) of § 6A-2.1-207 is expressly limited by § 6A-2.1-208, which in cases of modification of leases for goods, prohibits such modification by any means other than a writing if the original lease provides for written modification only. See § 6A-2.1-208(2). In the present case, the parties’ lease did not contain such a limiting clause.
. In its response to the lessee’s objection to its dismissal motion, the lessor conceded that from July 1994 to July 1995, rental payments were made "on or near the due date [the first day of each month].” However, as part of the record below, the lessor also proffered a chart showing the dates of these rental checks and, if the acceptance date is different, the date when the check was received by the city. Nearly all the checks are dated on or after the seventh day of each *669month and several of these are dated on or after the tenth day of the month — well after the first-of-the-month "due date."
. During the pendency of the appeal, the lessee was required to make rental payments pursuant to G.L.1956 § 34-18.1-18, which states:
"Payment of rent during pendency of appeal. — Whenever an action for the recovery of real property covered by this chapter shall be pending on appeal in the superior or supreme court, the defendant or defendants in the action shall pay to the plaintiff or plaintiffs sums of money equal to the rent for the premises, which sums shall be paid at such times and in such amounts as rent would be due and payable were the action then not pending. The acceptance of this money shall not constitute a waiver of the right of the plaintiff or plaintiffs to obtain possession of the premises, nor shall the receipt thereof be deemed to reinstate the defendant or defendants as tenants.” (Emphases added.)