Landlord and Tenant: City of Roanoke prevails in dispute with commercial tenant

Where a commercial lease had a definite term of three years and terminated on a precise day, the trial court correctly determined that the landlord was not required to provide the tenant with notice of nonrenewal.

Background

Melrose Athletic Club Inc. appeals the trial court’s order granting the City of Roanoke possession of a commercial building that Melrose had been leasing from the City. Melrose argues that its three-year lease with the City automatically renewed because the City did not provide timely notice of nonrenewal.

Following a bench trial, the trial court found that “notice of nonrenewal was not required under the [l]ease” and that Code § 55.1-1410 did not apply because the lease was “for a fixed[]term and not a year-to-year lease.” Accordingly, the court entered judgment in the City’s favor and granted it possession.

Analysis

Under Code § 55.1-1413, when a nonresidential tenant for a definite term fails to vacate the premises “not due to his willfulness, negligence, or other avoidable cause,” he does not automatically become a tenant for another term. Melrose argues that its failure to leave the property “was not due to [its] willfulness, negligence, or other avoidable cause” and that “the statute clearly implies” that it thus “be held as a tenant for another term.” Melrose did not make that argument to the trial court, however, and it is therefore waived. Melrose does not invoke any of the exceptions to Rule 5A:18, and this court does not raise them on its own.

Melrose’s primary argument is based on Code § 55.1-1410(A), which provides that “[a] year-to-year tenancy in a nonresidential rental property may be terminated by either party giving three months’ notice, in writing, prior to the end of any year of the tenancy.” Melrose contends that the lease agreement created a year-to-year tenancy and that the City failed to give three months’ notice of nonrenewal.

Melrose made that argument below. But Melrose contradicted its own position by stating during closing argument, “[w]hile technically this is not a year-to-year lease as outlined in” Code § 55.1-1410, “it is a multi-year lease.” “[A] party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.”

Regardless of whether counsel improperly reprobated, the trial court correctly determined that the lease agreement did not create a year-to-year tenancy. “When a tenant is in possession under a lease for an indefinite term, . . . a periodical tenancy is thereby created . . . .” “Where there is an intent to create a tenancy, and no term is fixed, it is a tenancy from year to year, generally . . . .”

But a year-to-year tenancy “can arise only where the duration of the tenancy is originally indefinite.” “If the length of the term be fixed by the contract, as where the lease is for a year, or a certain number of years, no notice to quit is necessary to dissolve the relation of landlord and tenant.” In other words, “[w]here a term is to end on a precise day, there is no occasion for notice to quit, because both parties are apprised that unless they come to a fresh agreement there is an end of the term.”

The lease agreement between Melrose and the City did not create a year-to-year tenancy because it had a definite term of three years and terminated on a precise day. Melrose contends, without any supporting authority, that the lease was year-to-year because it “provide[d] [three] annual terms,” with each “running from December 1 to November 30.” But the lease’s plain language did not establish three annual terms. It established one term of three years, terminating on Nov. 30, 2022, with no provisions for automatic renewal. Therefore, the trial court correctly determined that the City was not required to provide Melrose with notice of nonrenewal and properly granted possession to the City.

Affirmed.

Melrose Athletic Club Inc. v. City of Roanoke, Record No. 0469-24-3, Feb. 4, 2025. CAV (unpublished opinion) (Atlee Jr.). From the Circuit Court of the City of Roanoke (Carson). John S. Koehler (Christopher M. Di Risio; The Law Office of James Steele, PLLC, on brief), for appellant. David L. Collins, Deputy City Attorney (Timothy R. Spencer, City Attorney, on brief), for appellee. VLW 025-7-019. 6 pp.