Strauss v. Fornaciari

147 Ill. App. 18, 1909 Ill. App. LEXIS 4

• Court: Appellate Court of Illinois
• Decided: February 16, 1909
• Docket: Gen. No. 14,360
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The terms of the lease expressly provide that the plaintiffs, the lessors, may, in case of default in the payment of rent, without notice or demand of rent, declare the term created by the lease ended and re-enter, etc. No demand or notice was, under the terms of the lease, necessary to enable the lessors to declare the term ended in case of default in the payment of rent. The lessors declared the term ended, gave notice to the lessees of such election and a notice to quit before this action was brought. It is immaterial whether the lessees did or did not tender to the lessors the rent within the time fixed in the notice for the surrender of the possession. Such notice is necessary, where notice and demand are not waived, to entitle a lessor to terminate the lease, for non-payment of rent, and within the time specified in the notice, the tenant may pay the rent in arrear and prevent a forfeiture. Chapman v. Kirby, 49 Ill. 211; Woods v. Soucy, 166 id. 407.

But where by the terms of the lease notice and demand are waived, the lessor may, without notice or demand, declare the term ended, and by such declaration, notice thereof and notice to quit to the lessee, the term of the lease is ended, and the lessee cannot thereafter, by tendering the rent, avoid the forfeiture. Espen v. Hinchliffe, 131 Ill. 468; Belinski v. Brand, 76 Ill. App. 404; Lane v. Brooks, 120 id. 501; Kenyon v. Manley, 125 id. 615.

The judgment of the Municipal Court will be affirmed.

Affirmed.