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In the Spotlight: Use It or Lose It!

By Christy L. Abbott

Can a landlord who fails to collect rental payment increases recover the unpaid amounts years after such amounts should have been due, or even after the expiration of the lease, despite the fact that the landlord failed to seek such payments throughout the term of the lease? We are all familiar with provisions in commercial leases that require base rent to increase automatically at certain times, whether due to changes in the Consumer Price Index (CPI) or other formulas or adjustments. However, what happens when the landlord does not pursue such payments until after (sometimes years after) such adjustments were to be made?

While some cases deciding this issue have concluded that the landlord was barred from collecting the increased rental amounts from the tenant when the landlord failed to give timely notice of such increase, other cases have held that the tenant remained liable for the increased amount even after the lease had terminated. A review of the facts of some of these cases provides helpful (and perhaps surprising) insight for landlords and tenants alike.

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