Daily Development for
Friday, September 15, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; LANDLORD'S REMEDIES; WAIVER: Despite accepting four late rent payments, landlord did not waive his right to timely rent payments because of his attempts to force the tenant to pay on time. Living Scriptures, Inc. v. Kudlik, 890 P.2d 7 (Utah App. 1995).

After the tenant missed two months rent, he entered into a memorandum of understanding with the landlord promising to make future rent payments on time, and allowing for termination of the lease if payment were late. The tenant thereafter paid rent late from March through June. On August 27, after the tenant failed to pay rent for July and August, the landlord commenced an unlawful detainer action. The tenant paid rent for July and August within the statutory period of time to cure, but failed to pay the September rent by September 13. On September 20, the trial court ordered the tenant to restore the premises to the landlord and pay all past due rent and attorney fees, including treble rent from August 27.

On appeal, the trial court's determination that the landlord never waived its right to timely payment was affirmed as a justifiable exercise of discretion, given the landlord's repeated attempts to obtain timely payment by entering into the memorandum of understanding and by other attempts to "bird dog" the tenant into paying on time. The appellate court also found that a non-waiver clause in the memorandum of understanding, while not dispositive, constituted additional evidence that the landlord preserved his right to prompt payment.

Comment: This is a refreshing case in two ways. First, the court admits that it won't always credit the "non waiver" clause, which everyone knows but courts don't always outright admit. Second, the court actually looks at the overall circumstances, rather than hanging the landlord up on a technicality when there is no argument that the tenant was "lulled into a sense of false security" by the landlord's failure to assert his rights more vigorously.

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