THE "NO WAIVER" CLAUSE: “THE LEASE SAYS THE RENT IS DUE ON THE FIRST, BUT THE LANDLORD HAS NEVER ENFORCED THAT.” THE MERE FACT THAT'S WHAT HAPPENED IN THE PAST DOESN’T MEAN THE LANDLORD CAN’T ENFORCE THE LEASE AS WRITTEN AT ANY TIME.
SUMMARY: It’s altogether commonplace for landlords to accept rent late – and sometimes very late. But there is a “No Waiver” clause in most leases – including the TAA Lease – that allows the landlord to insist on strict conformity with the lease at any time without regard to what the landlord may have done in the past. This allows a landlord to tighten its belt at any time.
DISCUSSION: I’ve been practicing law in the Texas courts – principally in the DFW area courts – since 2004. My very first case – my very first client – was a tenant who had been paying her rent between the sixth and eighth of each month, and she had been doing so for over five years. While her lease provided for assessment of late payment fees, her landlord never attempted to collect them. But then the landlord got a new management company. The new PM began by insisting on payment of late payment fees. When the tenant continued to pay as she had previously – consistently late and without payment of late fees – the landlord refused her late payment of rent and instituted eviction proceedings. I represented the tenant, and being a baby lawyer at the time, I was certain I had the case in the bag, a real slam dunk. Boy was I wrong. To continue the sports lingo, the tenant lost by couple touchdowns. Most leases contain a “No Waiver” clause that prohibits a tenant from holding a landlord’s prior accommodations or flexibility against him/her in the future. The TAA Lease is the most widely used residential lease in the State of Texas. And in that lease - more specifically in the “Miscellaneous” section at Paragraph 33 - one will find this “No Waiver” clause: “No action or omission by us will be considered a waiver of our rights or of any subsequent violation, default, or time or place of performance. Our not enforcing or belatedly enforcing written-notice requirements, rental due dates, acceleration, liens, or other rights isn’t a waiver under any circumstances.” Trusting your lease has a “No Waiver” clause comparable to that contained in the TAA lease – or trusting better still that you’re using the TAA Lease – that fact is that any accommodations a landlord has given to a tenant can NOT be used against the landlord in the future. A couple words to the wise though: 1. If a landlord has run astray of the lease terms and intends to change those ways, the landlord would do well to warn its tenants that they intend to do so, lest the landlord should find itself neck-deep with evictions. It is fairly human nature to push the limits. If you're the a landlord and you've let those limits be stretched, let them know those days have ended and that future infractions will be dealt with more severely, including eviction proceedings if necessary. 2. Deviations from the lease terms should be the exception, not the rule. I often tell my business clients, “Well-built fences make good neighbors.” That couldn’t be more true for landlords and their tenants. Post-script: The tenant lost that eviction case and was therefore evicted. The court upheld the No Waiver clause contained in the TAA lease and thus ruled the tenant had breached the contract by failing to pay rent on or before the first day of the month as required by the TAA Lease.