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§  91        TENANCT  FOB  YEABS  UNDER  A  WRITTEN  LEASE

course  be  waived  by  the  lessor;  ''^  and,  when  the  further  term
is  to  be  held  only  at  an  increased  rent,  an  acceptance  of  such
rent  by  the  lessor  is  a  waiver  of  notice/*®

Where  a  lease  provided  that  the  lessee  should  have  the
privilege  of  renewal  at  an  increased  rent,  provided  three  months'
notice  were  given,  and  the  notice  was  given,  but  no  new  lease
was  made,  and  the  lessee  held  over  paying  the  increased  rent,
it  was  held,  semble,  that  he  was  holding  under  the  lease,  but
that  if  he  had  only  a  covenant  it  would  be  a  good  equitable
defence  to  summary  process/^  So  if,  at  the  end  of  the  first
term,  the  tenant  continues  in  possession  of  a  building  which
he  has  erected,  and  he  is  not  ready  to  move  and  pays  rent  sub-
sequently, these  facts  are  competent  evidence  of  an  election
by  the  tenant  to  renew  the  leaseJ^  It  is  competent  for  the
tenant  to  rebut  the  presumption  arising  from  his  continuing
in  possession;  as  by  showing  that  he  did  so  as  tenant  at  will,
under  an  oral  agreement  made  by  the  lessor  before  the  execu-
tion of  the  lease.  ''Such  evidence  contradicts  no  term  of  the
lease.  It  simply  shows  that  the  option  secured  to  the  tenant
by  the  lease  has  not  been  exercised."  ^^^

A  fortiori,  where  the  lease  provides  that  if  no  notice  of
termination  is  given  at  a  certain  time  before  the  end  of  the
term,  the  lease  shall  continue,  no  notice  of  election  to  con-
tinue is  necessary.^**

Where  a  lease  contains  an  option  of  renewal  to  the  lessee
for  a  definite  period,  an  agreement  for  an  extension  for  a  difiFer-
ent  period  is  no  evidence  that  the  option  has  not  been  exer-
cised, as  the  length  of  time  for  the  extension  may  be  modified
by  agreement.^** '

§  91.  Specific  pexformance.^^^ — A  breach  of  covenant  during
the  term  on  the  part  of  the  lessee  may  disentitle  him  to

7*7  Wood  v.  Edison,  etc.,  Ck>.,  184  Mass.  523,  527.
