(No) Waiver

Hello landlords and tenants. I’m going to discuss “waiver” or more specifically “no waiver” of rights in commercial real estate leasing. My name is Jenna Zebrowski and I am the attorney behind LawByJZ.com. If one of the parties of the lease isn’t immediately enforcing its rights under the lease, those rights aren’t waved.

That party can come back at a later date and enforce those rights, and collect damages, which generally don’t get smaller in amount with the passage of time. But if a party waits TOO long to enforce those rights, the party might lose out on the opportunity entirely, because the law forbids it, even if the lease doesn’t.  It’s important to know what the rules are on time limits for claims under the lease and the law, or you might find out you waived your rights after all.


Commercial Real Estate Case Study

(No) waiver: You Can Enforce the Lease

Just because there’s a delay of enforcing rights under the lease doesn’t mean that the rights are completely waived. Christina had virtually abandoned the premises where she was renting space for her store, because it simply wasn’t profitable for her anymore. She started missing rent payments and only made them when she made a profit at the store that month.  The lease finally expired, but she delayed several months before moving out, because she didn’t know what to do with the rest of her inventory. 

She finally was ready to move, and when she returned to the store to get the remaining items, she was locked out and she received a demand for the months of back rent she had not paid, along with other fees and penalties, which went back seven years! She offered to give them the inventory in the store, but the landlord didn’t want her stuff, they wanted her money.

Christina called an attorney and asked what she should do.  She sent over her lease, but it didn’t help her very much because she had signed it without an attorney. In fact, the lease stated that the landlord hadn’t waived any rights by waiting so long to pursue damages. 

Christina hired the attorney to help her negotiate the debt.  The attorneys were able to reduce the amount owed.  The landlord didn’t waive any rights under the lease, but the law stated there was a limit on how far back the landlord could look for rent payments.  Also, Christina hadn’t missed all of the payments, just some of them, so she didn’t waive her rights to get credit for the payments she did make.

The attorneys were able to work out an agreement without waiving anyone’s rights or creating more penalties or liabilities.  Christina’s attorney was able to prevent her from waiving any of the rights she did have and help her negotiate a settlement for the lease defaults.