§ 18.03 Informal Accommodations and Waivers

• Jurisdiction: United States
• Publication year: 2022

§ 18.03 Informal Accommodations and Waivers

It is customary when dealing with services or other obligations under the commerical lease for the landlord and tenant to make informal accommodations for each other. This often takes the form of waiving certain requirements or ignoring certain defaults. Life under an office lease is a very fluid relationship with much interaction and many such accommodations. Once the lease is signed, it is frequently the case that parties rarely look at the agreement again, operating however they feel is appropriate. Although not a wise course of conduct, as long as the parties stay the same this ad hoc approach may occasionally work to the parties' satisfaction. However, if the parties change over the course of the lease term, all bets are off. It is therefore fair to say that even if both parties are comfortable operating through informal customs and practices, neither can rely upon the continuation of such accommodations.

For example, a tenant cannot rely on the favorable course of dealing it had established with its previous landlord or vice versa. Commercial leases with a no waiver clause limit any impact on the lease from any favorable customs of dealing between the parties that may be at odds with the lease language. If a new landlord comes into the picture, it may try to increase costs to the tenant and limit any favorable treatment not expressly required by the lease. Consequently, negotiating a lease should always be done with an eye to the "new unfriendly landlord" scenario.¹ Likewise, the landlord will want to know who its tenant is and will seek to retain control or otherwise limit changes in this entity.² Any of these limitations can have a serious impact on the continuation of informal accommodations.

Leases may also try to sever the obligations of the landlord to perform.³ A tenant who is paying its rent and performing under its lease may find itself with a new landlord who has no liability for obligations under the lease for tenant work or other concessions or certain services. The tenant will still be required to pay its rent and will have to look to the prior landlord to satisfy the obligations.⁴ Usually, at the time of a substitution of the landlord, the old course of comfortable dealing goes by the wayside too.

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Notes:

^[1] There are many issues to consider to protect against changes brought by new parties coming to the lease during the term. For instance, it is important to know who the parties are...