Don't Forget Nonwaiver Provision to Help Evict Tenant

An eviction right in your lease is invaluable if things go south with a tenant who fails to pay rent, but you could undo what might’ve been a hard-won right for you in negotiations if you accept some, but not all, of the overdue rent even after you’ve started the eviction proceeding. That’s because, if your lease doesn’t say whether you can continue to evict the tenant after accepting its partial payment, a court might decide to bar you from doing so.

You can protect yourself by preserving your right to evict the tenant. Making sure your lease has a nonwaiver provision is one way to do this. The nonwaiver provision should say that your acceptance of partial rent won’t waive any of your rights or remedies under law or the lease, including your right to evict the tenant and recover possession of the space. Ask your attorney about adding this nonwaiver provision to your lease:

Model Lease Language

Acceptance of a partial rent payment shall not constitute a waiver of any of Landlord’s rights available under this Lease or at law or equity, including, without limitation, the right to recover possession of the Premises.

Although having the nonwaiver provision in the lease may be enough to protect you, consider going one step farther and adding it to the eviction notice. By putting the nonwaiver provision in your eviction notice, you may be able to prevent a lawsuit from ever starting. (Check with your attorney to see if your state’s laws require that you take any additional steps to prevent a tenant’s partial rent payment from damaging your eviction right.)

For more tips on how you should appropriately handle evicting a tenant, see “Don’t Get Tripped Up by Improper Eviction,” in the November 2016 Insider, available here.