A local court recently rules that a landlord impliedly waived the tenant's obligation to pay rent by not insisting that rent be paid on time. While there were many more facts, the salient facts were as follows:
- The lease had language provided, "No waiver of any default of either party hereunder shall be implied from any acceptance by Landlord or delivery by Tenant (as the case may be) of any rent or other payments due hereunder or any omission by the non-defaulting party to take any action on account of such default:
- Although the lease did not require it, the landlord agreed to do some ADA improvements in the common area and as required by the plans for the tenant improvements approved by the city;
- The lease provided for early possession of the premises by the tenant to do its own tenant improvements. Landlord was to do no work.
- The Lease provided for a date certain for the commencement of the payment of rent, whether the tenant completed its T.I.'s or not.
- Tenant never completed its T.I., and about 14 months after lease and rent commencement (landlord applied about 6 months T.I. allowance to rents and 1st months rents, 1/2 months rent paid after T.I. allowance was applied and approximately one months rent paid after month 12), landlord commenced suit to collect rents;
- Lease provides that any amendment must be in writing;
- There was no testimony or any evidence that there was any agreement to waive rents;
- Defendant testified that he thought that he did not have to pay rents until he moved into the premises although he did admit that he didn't read the lease at the time that he signed it.
- The parties stipulated that the city would not give the tenant an occupancy permit unless the ADA improvements were completed;
The court found that, the landlord waived rents and the tenant's other Lease obligations, notwithstanding the language of the lease and the fact that there was no evidence of an explicit waiver or any agreement to waive rents. The court considered the landlord's failure to pursue rents sooner was a waiver.
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