Waiver Can Prevent Landlords From Evicting Non-Paying Tenants
If you are a landlord of residential or commercial property, you may be facing this problem in the COVID economy: If you have an otherwise good, timely paying tenant who now cannot pay rent on time, do you give the tenant chances to pay the rent late? Or, do you “stick by your guns,” and commence eviction, even knowing that there may not be many tenants waiting in line to occupy the soon to be vacant space?
The Good Tenant
Let’s assume you have a good tenant. The tenant has historically paid on time, and has not given you problems in the past. When the tenant does pay late rent, it usually is only a day or two late, and doesn’t cause you many financial problems.
Because good business decisions should be the primary concern, you historically allow the tenant to pay the rent a few days late-after all, good (or any) tenants are hard to find. But enough is enough—you cannot keep allowing the tenant to pay late, and now you commence eviction proceedings.
Waiver and Estoppel
Your eviction could have one problem: Waiver, or in legal terms, what is known as estoppel. By your actions in the past being flexible with rent payment deadlines, you now have established a pattern of accepting rent late. The tenant has come to rely on your past allowances, and can justifiably believe that he or she can pay rent a little late, and not be evicted.
In many cases involving contracts (and not just in leases), the behavior of the parties, or the pattern and practice of business dealings between the parties, can serve to modify the otherwise previously agreed upon written terms of an agreement. The question that courts ask is whether a reasonable tenant in the same situation would believe that the landlord or lessor actually intended on enforcing the terms of the agreement.
Accepting Late Rent
So as a landlord or lessee, can you ever allow a tenant to be a little late accepting rent? The answer is yes, as long as you have written protections.
The first protection you can have is express language in your lease, saying that a failure to comply with the terms of the lease on your (the landlord’s) part, does not constitute a waiver or estoppel. Many standard leases have this language, but you should check your leases to make sure that they do.
If possible, when accepting rent late, you should always send a notice that specifically says that your acceptance of late rent does not modify any terms of the lease, or waive any of your rights to enforce your remedies under the lease in the future.
The tenant does not have to sign this notice—it is simply a notice, to avoid the tenant from saying that he or she reasonably believed it would always be OK to pay rent late. You may want to have a way of making sure you can prove the notice is received, such as by sending it certified
By providing these notices, landlords will have the flexibility to accept late rent, without always having to evict otherwise good tenants.
Consult with our West Palm Beach landlord-tenant litigation attorneys with questions, or if you have a breach of contract case. Let our lawyers at Pike & Lustig, LLP, help you. Call us at 561-291-8298 to get a consultation.