From Our Readers: Even If Waived, a Landlord's Right to Timely Rent Can Still Be Restored
Regarding your recent article, “Waiving the Right to Evict by Accepting Late or Partial Payment,” (April 2022), you may wish to advise your readers that if a tenant asserts that a landlord’s past conduct of accepting late payments of rent constitutes either a waiver or a modification of the lease by “course of conduct,” it’s still within the landlord’s right to insist that in the future, the terms of the lease shall henceforth be enforced in accordance with their terms. In other words, the landlord can decide to put its foot down and make it clear that the party is over and in the future we’re all going to be bound by the exact provisions of the lease as written.
The New York Law
At least this is the case in New York. The leading treatise on Landlord-Tenant law in New York makes this right of the landlord quite clear: “In order to re-establish the method of payment required by the terms of the lease, after a modification thereof by the course of conduct of the parties, the landlord must notify the tenant that the custom created by the tenant will not be permitted, nor should be continued, in the future, and that payment of rent will be required upon the days stipulated in the lease. . .”
The same treatise also states that “[t]his customary method of payment will prevail over the method stipulated in the lease until, as the Appellate Division said, [Montan v. Moore, 135 A.D. 334, 120 N.Y.S. 556 (1st Dep't, 1909)], ‘the lessee has notice of the fact that such a custom will not in the future be continued and payment is required upon the day named in the contract” [Rasch, Landlord and Tenant, §12:26 (5th Ed. 2017)].
This reinstatement of the original terms is enforceable even with a standard no-waiver clause which the tenant will say has been waived or modified by a course of conduct [Paul Pleating & Stitching Co. v. Levine, 137 Misc. 82, 242 N.Y.S. 729 (Mun. Ct. 1930)].
Jefpaul is, of course, still good law, but this may place another arrow in our quiver. The strict terms of the lease may rise again, like Lazarus.
Alan B. Katz