Avoid Having to Give Notice to Chronic Violator

Like many owners, you may have certain tenants that commit the same lease violation over and over. But they always cure—that is, correct—the violation before it becomes a lease default. For instance, they repeatedly pay their rent late each month.

You may have tried to break the cycle of chronic violations by including a “chronic violations clause” in your leases. This clause makes it a lease default with no cure period if the tenant commits the same lease violation more than a certain number of times—say, twice—in a 12-month period. So you can immediately exercise your lease remedies.

A chronic violations clause is meant to deter chronic lease violations. And it lets you act swiftly to rid yourself of a troublesome tenant. But if your lease is like many we've seen, the clause may still not do the job because of this loophole: The lease may still require you to send the tenant notice before you can exercise your remedies. So you'll be forced to waste time and money sending out the notice—defeating one purpose of the clause. And if you fail to send out the notice, you may lose your remedies.

Alaska Owner Should Have Sent Notice

For example, the rent nonpayment clause in an Alaska owner's lease said that the tenant would violate the lease if it didn't pay rent within 10 days after notice. The lease also had a chronic violations clause that made it a lease default if the tenant committed two violations of the rent nonpayment clause within a two-month period. In August 1999, the tenant paid its utility bill late—more than 10 days after it got a late notice from the owner. The next month it paid its rent late. The owner immediately started an eviction action. The tenant argued that the owner couldn't evict it because the owner hadn't sent notice of the second lease violation. The owner argued that notice wasn't required before it could exercise its rights under the chronic violations clause.

Alaska's highest court ruled that since the owner hadn't notified the tenant of the second violation, it couldn't evict the tenant. The court noted that the chronic violations clause referred back to the rent nonpayment clause. And in doing so, the chronic violations clause incorporated the notice requirement that was in the rent nonpayment clause [Rockstad v. Global Finance & Investment Co., Inc.].

Eliminate Notice Requirement

To avoid the same fate as the Alaska owner, say in your chronic violations clause that you're not required to give the tenant notice before exercising your rights under the clause, says New Jersey attorney Marc L. Ripp.

To do this, Ripp suggests adding language like that underlined below to your lease's chronic violations clause: CLLI0012

Model Lease Language

Notwithstanding anything herein to the contrary, if Tenant is in default under any covenant, condition, or agreement of this Lease more than [insert #, e.g., one time] within any twelve (12) -month period, irrespective of whether or not such default is cured, Landlord, at its sole election, in its sole and absolute discretion, and without notice to Tenant, may [insert list of actions Landlord may take].

CLLI Source

Marc L. Ripp, Esq.: Counsel, The Gale Company, 100 Campus Dr., Ste. 200, Florham Park, NJ 07932; (973) 301-8057; MRipp@thegalecompany.com.