ANTI-WAIVER PROVISION IN LEASE HOLDS UP IN SUPREME COURT

In this forcible-detainer action, a commercial landlord sought to oust a long-term tenant by refusing to accept the tenant’s option to renew based on the tenant’s failure to timely pay rent.   Although the tenant frequently defaulted on the lease’s rental-payment terms, the landlord regularly accepted the tenant’s rental payments when tendered and without protest. The lease between the parties contained a non-waiver clause, stating that the landlord’s “acceptance of late installment of Rent shall not be a waiver and shall not estop Landlord from enforcing that provision or any other provision of [the] lease in the future”; “all waivers” must be “in writing and signed by the waiving party”; and any forbearance of enforcement shall not be construed to constitute a waiver.   The tenant argued, nevertheless, that by its own conduct, the Landlord intentionally waived this provision.

Both the justice court and the county court ruled in favor of the tenant.  But, the Texas Supreme Court, reversed, holding, “we can say with certainty that accepting late rental payments could not waive the parties’ agreement that contractual rights, remedies, and obligations will not be waived on that basis, especially when the lease provides a specific method for obtaining a waiver.”
Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 484 (Tex. 2017), reh’g denied (Sept. 22, 2017).
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