by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

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.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. Contact Shawn Kaminsky at the ABA. (312) 988 5260.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.