Stop Tenant from Delaying Your Lease Violation Remedies

When you send a tenant a notice that it has violated its lease, you expect it to “cure”—that is, fix—the violation promptly. And if the tenant doesn’t cure the violation within a set period of time (known as the “cure period”), you expect to be able to quickly take action against it according to the remedies outlined in the lease.

But a wily tenant may have other plans. Instead of bothering to cure the violation, the tenant might run to court to stop you from taking any action against it, warns New York litigator Robert M. Olshever. He has seen many cases where a tenant gets a violation notice and then runs to court, asking it to interpret the lease in a way that shows the tenant didn’t violate the lease or to bar the owner from enforcing a cure period. Even if you ultimately win the case, you’ve wasted time and money defending yourself in court, Olshever says.

To prevent this from happening, Olshever recommends adding three protections to your lease. The first two protections help you get two key waivers from the tenant. The third protection lets you terminate the lease if the tenant violates either waiver. There’s a Model Lease Clause, at right, that contains these protections. You can adapt this clause for use in your own leases.

Get Two Key Waivers

Make sure that your lease has a clause that contains the protections covered in our Model Lease Clause and says that if the tenant gets a violation notice from you, it waives these two rights:

Right to ask court to interpret lease. Require the tenant to waive its right to file an action asking a court to review and interpret the lease to determine whether the tenant violated it, says Olshever. In legal terms, this type of action is called a “declaratory judgment” action, he says [Clause, par. a]. Without this waiver, you’ll have to wait for the court to rule on whether the lease should be interpreted in the tenant’s favor, he warns.

Right to block time limits set in lease/notice. Require the tenant to waive its right to ask a court to stop you—in legalese, “enjoin” you—from enforcing any cure period or other time limitation set in the lease or your violation notice, says Olshever [Clause, par. b]. This type of legal action is often called an “injunctive relief” action. Otherwise, you may have to wait a long time for the tenant to cure its violation. For example, suppose the tenant’s rent is due on the first day of the month, and the lease gives it a 10-day cure period. On the fifth day of the cure period, the tenant may ask a court to stop you from enforcing the cure period. If the court grants the tenant’s request, the tenant won’t have to pay you by the tenth day of the cure period—or even anytime soon, Olshever warns.

Get Termination Right

To protect yourself even further, your lease should also say that violation of either of these two waivers is a “material”—that is, major—default, says Olshever [Clause, par. c]. And that means you’ll be able to immediately terminate the tenant’s lease, he says. This tough remedy puts teeth in the clause and gives the tenant an incentive to honor its waivers, he explains.

Practical Pointer: Expect a savvy tenant to say that it should have some place to turn if it believes it hasn’t violated the lease or isn’t sure how to cure the violation, says Olshever. In response, you may suggest some form of alternative dispute resolution. For example, the tenant will have the right to start a special, limited court action if there’s a dispute over a lease violation, he says. But make sure this right is restricted to disputes that don’t involve rent payment, he adds. You don’t want any holdups when it comes to getting your rent payments.

CLLI Source

Robert M. Olshever, Esq.: Robert M. Olshever, PC, 1981 Marcus Ave., Ste. 205, Lake Success, NY 11042; (516) 326-9310; BobbyOlsh@aol.com.