Every commercial landlord wants a waiver of jury trial provision in their lease and nearly every commercial lease in California contains such a provision. Why do landlord's feel that this provision is so important?
The answer is relatively simple. Most jurors have been tenants albeit, residential tenants at some point in their lives and few have been in the position of a landlord. Far more jurors will be able to relate to and sympathize with the tenant's position. Obviously, the landlords fear that a jury will stray from the strict dictates of the law and come to a verdict based more on emotion than the law. As a landlord attorney, I almost never want to be in front of a jury and will do what ever I can to avoid the situation. On the other hand, when representing a tenant, I almost always want, or at the very least threaten to have the matter heard in front of a jury.
The real question posed to me by Joel Hall in a Linkedin discussion is; "to what extent is the Waiver of Jury Trial provision often seen in leases, enforceable."
As a California attorney, I can answer that question as to California leases; NO! A commercial tenant can waive its right to a jury trial, but not until the filing of a suit by one of the parties to the lease. It is my understanding that the California courts will not enforce the Waiver of a Jury Trial provision in a commercial lease, based upon constitutional grounds.
So if a jury trial is so potentially dangerous to a landlord, what, if anything can a landlord put in a lease to avoid a jury trial? That is a subject of another blog post and an article I wrote nearly 15 years and which was published in the National Law Journal and as part of the ICSC Annual Legal Review. Now if I can only find that article.
By the way, although not an expert in residential leasing, I assume that a jury trial cannot be waived in a residential lease either.
Recent Comments