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The Enforceability of No-Waiver Provisions in Commercial Leases
When faced with the argument that it has violated its lease, a commercial tenant often takes the position that the landlord, by its conduct and/or inaction, has waived such alleged breach. Anticipating such arguments, commercial landlords frequently insert “no waiver” provisions into their leases. In one form or another, these provisions typically state that any waiver of a lease provision by the landlord must be in writing and that the landlord's conduct and/or inaction with knowledge of the tenant's breach, standing alone, will not constitute a waiver.
As with any other provision in a negotiated commercial lease between sophisticated parties of relatively even bargaining power, Courts will generally enforce “no waiver” provisions. Nevertheless, courts sometime hold ' again, as with any other commercial lease provision — that no-waiver provisions can themselves be waived.
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