I am a commercial tenant. I continuously pay my rent payments late. I never heard a peep from my commercial landlord. Now, all of a sudden, my commercial landlord is telling me that I am in breach of the lease for failure to pay my latest rent payment on time. Hasn’t my landlord waived this argument based on his prior acceptance of late rent payments?
Most commercial leases contain what is commonly known as an “anti-waiver” clause. Check your lease to see if it contains this common clause or language. This type of clause will ultimately state that the failure of a party (the landlord) to require performance of any provision in the lease does not serve as a waiver of any subsequent breach of that provision. The anti-waiver clause operates to allow a party (the landlord) to argue breach of contract even if that party intentionally or inadvertently excused that exact same breach in the past.
An example of anti-waiver language in a commercial lease can be found in the case Eskridge v. Macklevy, Inc., 468 So.2d 337, 339 (Fla. 1st DCA 1985):
Failure of Landlords to insist, at any time, upon strict performance of any covenants, provision or condition of this lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant, provision, condition or option. Receipt by Landlords of rent with knowledge of the breach of any covenant, provision or condition shall not be deemed a waiver of such breach, and no waiver by Landlords shall be deemed to have been made unless expressed in writing and signed by Landlords.
This language is typically enforceable and will allow a landlord to enforce a provision even if the landlord previously excused compliance with the same provision or another provision in the commercial lease. Although in certain factual instances there are arguments against the enforceability of such a provision, the safest bet is to understand the purpose of the clause and to treat this clause as being enforceable. In other words, don’t bank on continuing to pay your rent late or breaching a provision in the lease simply because the landlord permitted this on a prior instance.
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