More on the “Silence may form an agreement” headnote

May 26, 2010

West Headnote of the DaySilence was never written down.Italian proverb

Sometimes silence is not golden, it’s just yellow! Uncle Anthony


Tuesday’s Headnote of the Day consisted of this pithy and somewhat puzzling statement: “Silence may form an agreement when the failure to speak misleads the other party.” Some of you were intrigued by this headnote. We were too – so we checked into the case behind it, which turns out to be a classic landlord-tenant dispute.

The tenants were a New York City couple with plans to buy their own condo. They gave notice that they planned to move out of their apartment by August 31, which coincided the end of their lease term.

So far, so good. But as any homeowner knows, an alarming array of problems can arise between offer acceptance and closing, and sure enough, the hopeful homeowners’ closing date was pushed back. They asked the landlord if they could continue renting through September, and the landlord reluctantly agreed.

The real-estate delays continued. In mid-September, one of the tenants talked to the landlord’s wife on the phone. The tenant hinted at the creeping likelihood that the couple would need a place to stay beyond September, but she did not ask explicitly for another extension.

The couple ended up staying until December 23, but the landlord refused to cash their rent checks after September, instead opting to file for a holdover proceeding to force them out.

What the headnote refers to is the tenants’ silence regarding their intent to remain in the apartment beyond the agreed-on one-month extension. Their failure to speak misled the landlord, according to the judge, and effectively signified that they would abide by the terms of the oral agreement.

A two-for-one lesson here: If you want it, ask for it… and then get it in writing.

Curious about the case? Westlaw users can view the judgment in Palumbo v. Donalds (754 N.Y.S.2d 856) on Westlaw. (Requires sign-on)

Curious about the quotations? Both of the quotes at the very top of this post can be found in Uncle Anthony’s Unabridged Analogies: Quotes & Proverbs for Lawyers and Lecturers, which is available at a 10% discount to all Westlaw Insider readers – including the talkative ones.