Owner's Conduct Didn't Negate No-Waiver Clause

A tenant defaulted under a lease by failing to get its building permits. The owner then sued to evict the tenant. The tenant argued that the owner couldn't evict it because the owner—through its conduct—had waived its right to declare the tenant in default of the lease.

A New York court ruled that the owner hadn't waived its right to declare that the tenant was in default. The court admitted that the lease had a no-waiver clause that protected the owner—but that the owner could negate the clause through its conduct. But the court said that the owner hadn't done anything that negated the no-waiver clause. Rather, the court discovered that the owner “at all times made it clear” that the tenant had to comply with the building permit requirements, and although the owner was willing to help the tenant get the permits, it was not going to waive this requirement. Plus, even the tenant's witnesses admitted that the owner consistently refused to accept or “participate in tenant's defaulting conduct” [Heartland Assocs. v. Adam Oser Inc.].