Waiving your right to enforce lease

Posted by wasserman

One of my tenants recently asked me if he could keep a friend’s small dog for a week while the friend is away on vacation. I have a no-pet provision in my lease, but I don’t mind the short-term stay. But, if I allow the tenant to do this, do I waive my right to enforce this provision later on if he decides he wants a permanent pet?

“Waiver” is a legal doctrine that has forever haunted landlords. Indeed, it’s a nasty six-letter word that can ruin a perfectly proper eviction, or, for that matter, the ability to enforce valid lease provisions.

Waiver is defined as follows: When the landlord knows that the tenant is breaching the lease, yet conducts the landlord-tenant relationship in the normal course (for example, accepts rent and otherwise does nothing to object to the violation of the lease), then the court may infer that the owner has waived, or forgiven, the breach. For example, the acceptance of rent either by the landlord or the property manager with full knowledge of the lease violation is generally considered to be a waiver of the breach, and, consequently, the owner cannot thereafter seek to evict the tenant by reason of this violation.

The problem with waiver is that it may be permanent. For instance, if the lease states that rent is due on the first, but I have a practice of allowing you to pay rent on the tenth, I probably cannot suddenly make you pay on the first again. Similarly, if the rental agreement contains a no-pets clause, but I make exceptions here and there for temporary stays, the ability to terminate the tenancy when you bring in a dog as a permanent companion is seriously hindered. Thus, in the Landlord 101 classes and at the SFAA monthly meetings, the attorneys always urge the members to consistently and strictly enforce all material provisions of a rental agreement.

In the past, landlords with leases that contain an “anti-waiver clause” (such as the SFAA Lease) could bend the rules once in a while and avoid making waiver permanent. An anti-waiver clause is a lease provision that looks something like this:

No failure of Owner to enforce any term of the Agreement will be deemed a waiver of that term or of any other term of the Agreement. The waiver by Owner of any term of the Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term of the Agreement, nor will any custom or practice which may develop between the parties be construed to waive or to lessen the right of Owner to insist upon performance by Tenant of all the provisions of the Agreement, or support a claim of detrimental reliance by Tenant. Owner’s acceptance of a partial payment of rent will not constitute a waiver of Owner’s right to the full amount due.

However, in recent years, courts have held that such an anti-waiver clause can also be waived if lease enforcement is relaxed! The above provision, taken from the SFAA Lease, was amended this year to state that the anti-waiver clause cannot be waived, but whether a court accepts the argument that an owner can contract around waiver in the residential leasing context is definitely not assured.

Therefore, always enforce your rental agreement, even if this means you cannot grant special favors or gratuities. Sadly, we operate in a vigorously regulated industry, and the penalties of forgiving or ignoring lease obligations are quite significant.

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