Waiving Non-Waiver Provisions By Waiving Such Provisions (Again)

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We’ve written about the legal concept of “waiver” too many times to warrant furnishing any links to earlier blog postings. To sum it up succinctly, we’ll start with an example of a pretty familiar provision found in most agreements such as leases and mortgages (to keep us within the real property family). It reads as follows:

All waivers must be in writing and signed by the waiving party. A party’s failure to enforce any provisions of this [lease] will not be a waiver and will not estop that party from enforcing that provision or any other provision of this [lease] in the future.

If an English-speaking visitor arrived from outer space and, after completing its abduction of one or more of the world’s inhabitants, read this, it would think there could be no waiver if it were not given in writing. It would be wrong. Likewise, native-born earthlings should always have some doubt as to whether to rely solely on the ability to read. Context (and established law) matter.

Generally speaking, at least under United States jurisprudence, the Texas Supreme Court, in a clarifying (for Texas) May 12, 2017 decision, wrote the following: [Read more…]

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Real Estate Community Expectations And The Agreements We Reach

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In writing for a broad audience in a somewhat breezy manner, Ruminations frequently fears it is misleading some readers. As hard as we try to incorporate appropriate caveats when expounding on legal principles, Ruminations is quite aware of a built-in shortcoming. It isn’t enough to carefully highlight the limitations of what appears in a blog posting. It isn’t enough to warn that this blog is written to provoke discussion and is not written as a substitute for real legal advice. These blog postings discuss matters of law, but the “law” means nothing in the abstract. It only matters when applied to specific facts being examined. The very same “law” applied to two different situations can produce starkly different  ̶  sometimes seemingly opposite  ̶  results. That’s because the law is intended to support a civil society and, in such a society, outcomes are expected to meet community expectations.

An excellent example of a law crafted to meet community expectations is Article 2 of the Uniform Commercial Code. That’s the part of the “UCC” governing the sale of goods. Basically, it works in a number of ways. One of those ways is to act as a “gap filler.” That’s not something one buys at Home Depot, Lowe’s, or an Ace Hardware store. In this context, a gap filler is a contract provision that the contracting parties didn’t write down. The Act’s “gap fillers” are actually a codification of “what really goes on,” hence part of a “Code.” It codifies practices in the commercial community. Basically, in this role, Article 2’s function is to create rules that persons in that community, the one in which buyers and sellers transact in goods, would expect in the absence of something specifically to the contrary in their specific agreement. [Read more…]

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Are All Constructions Structural?

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Again, we ask: “What is a structure?” We say, “again,” because Ruminations explored (mined) this topic a little more than three years ago in a blog posting titled: “What Is A Structural Component? Do You Know?” To see it (anew or again), click: HERE.

We’ll start with the take-away for today. It is that we might want to define important words that we ponder at times. “Structure” and the form “structural” come to mind. After all, if you’ve been in business of “reading leases (or other real property agreements)” for any decent period of time, you’ve faced the need to answer whether some “thing” is a structure. For sure, buildings are structures. Are fences or retaining walls structures? Perhaps the answer is fact-dependent. Perhaps we need to call an expert in the mold of Justice Potter Stewart (who wrote, in 1964, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-ore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”). [Read more…]

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In Good Faith, Would Your Agreements Say That A Party Can Act In Bad Faith?

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Would you write that a tenant’s or landlord’s consent was required but that consent could be withheld in bad faith? We don’t think so. We’ve never seen such. We doubt we ever will.

There is no need for a contract, such as a lease or mortgage, to say that the parties will act in good faith. The obligation to act in good faith and deal fairly with the other party or parties is implied by law into every agreement. As such, it is a contractual obligation, not a fiduciary duty. So, we think that, as a contractual obligation, it can be negated by a voluntary and knowing agreement between the parties to an agreement. That’s what expressly allowing one party or the other to act in bad faith would do.

Admittedly, we haven’t done any legal research that would support or undermine our thinking. That’s because we strongly doubt anyone ever included a “bad faith allowed” provision in their agreement. If any reader knows otherwise, let us and other readers know through the comment feature of this blog site. [Read more…]

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You Can’t Get An ALTA/ACSM Land Title Survey Anymore

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Today, we write about surveys, but in a pretty narrow way. We assume readers know enough about surveys for our posting to make sense and be useful – useful as in “it’s time to update our lease, mortgage, and other forms.” If you are still calling for an “ALTA/ACSM Land Title Survey,” start calling for an “ATLA/NSPS Land Survey.” In 2012, the American Congress on Surveying and Mapping (ACSM) merged into the National Society of Professional Surveyors (NSPS). Earlier this year, in February to be more specific, the survey standards were changed to reflect that change. So, if any reader wants to be “hip,” start practicing “ALTA/NSPS.”

That wasn’t the only change to the 2011 survey standards; they became the 2016 standards. Thus, we’ll all want to refer to the “2016 ATLA/NSPS” ones.

What are the other changes, trivial and a little less trivial? Here are some highlights. [Read more…]

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So, Wise Guy, What Replaced “All Risk” Insurance?

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Ruminations looked to see how many times it had written that there hasn’t, since 1983, been something called “All Risk” insurance, the year the insurance industry “deep-sixed” that policy form (and name). Well, to put it bluntly, it was a lot. Yet, an overwhelming number of agreements coming across our desk “asking” for insurance still call for this long-dead (33 years dead) policy form. What our searching revealed, however, was that we never ever completely described its replacement. Today, we will do so, though “completely” would be an overstatement.

First, let’s get some background out of the way. As in the past, we are writing based, in large part, on the terminology and forms used and promulgated by Insurance Services Office, Inc. (“ISO”), a company that creates those things for most insurance companies. Its forms probably account for 95% of the ones you’ll ever see. Yes, there are other “forms” and insurers will add or substitute their own, but with ISO dominating the field, time spent on the subject is best spent focusing on the ISO forms. [Read more…]

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Exclusive Use Clauses – Writing Them Wrong

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An “evergreen” (or timeless) discussion topic at law conferences, such as the recently concluded ICSC Law Conference in Phoenix (a highly, highly recommended annual event) is the “exclusive use clause.” We’ve written about exclusive use restrictions, too many, many times, too many to furnish only a link or two. [If you want to see one or more of those postings, use “exclusive use” in the search box.] Today, we’ll talk a “little” law and we’ll throw in a bonus at the end.

Basically, Ruminations will look at the difference between writing “Landlord will not …” and “No part of the Property may be used … .” [Read more…]

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Don’t Fight For the Right To Terminate (And A Stray Thought About Friends)

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This will be the 237th Ruminations blog posting and the first time we’ve done a potpourri. As readers can imagine, at any one time, there are dozens of thoughts running through the Ruminator’s mind, some useful, most not. Among those that are worth expressing, there are some that wouldn’t qualify under the Ruminations stylebook because they wouldn’t result in the killing of the requisite minimum number of trees (electrons?). So, today, we’ll toss out one such substantive thought and add one adjective thought just to fill the space. We’d say, “All the news that fits, we print,” but we don’t want to be chased by The Grey Lady. [Read more…]

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