Boilerplate – The Rodney Dangerfield Clauses – Part 2

Some of you may recall that in March, 2012, I wrote Part 1 of this Article, dealing with the Notice, Entire Agreement, Severability and Governing Law clauses that are common to virtually every agreement – and not just leases.

In this article I will address three more boilerplate clauses typically found in agreements;

1.  No Waiver: A sample clause reads like this: “No waiver of any of Tenant’s obligations under this Lease or of any of Landlord’s rights in respect of any default by Tenant hereunder shall be deemed to have occurred as a result of any condoning, overlooking or delay by Landlord in respect of any default by Tenant or by any other act or omission of Landlord save and expect where such waiver is clearly and expressly in writing”

Waiver clauses are inserted into leases by parties to prevent the automatic surrender of a party’s rights under a lease by act or omission to act which inadvertently result in a loss of the rights sought to be protected.

Although the clause clearly states that any waiver must be in writing, be aware that there is case law that holds that a landlord’s actions in accepting rent late will be a waiver of the rent default even if there is nothing in writing. So, one suggestion is to make sure that any correspondence or actions following a default are sent or clearly taken on a “without prejudice” basis to the strict compliance with the lease terms, including the acceptance of late rent, and not to be construed as a waiver.