When Do We Go Too Far In Taking Away Normal Real Property Remedies?

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Take your pick: Yellowstone National Park, Yellowstone Boulevard (Forest Hills, Queens, New York City), Yellowstone, the TV series, Yellowstone supercomputer, Yellowstone River, Yellowstone (the steamboat), Yellowstone whiskey or Yellowstone injunction. [There are more.] We have picked the injunction. That’s probably no surprise to readers in and around New York, but for others who haven’t yet figured out where this is going, we’ll briefly describe this brand of injunction. We think it is a distinctly New York thing, but even if other places have the same thing under a different name, we think today’s blog posting will make all of us do a little thinking. [That means we are not going to provide any answers today, just questions.] [Read more…]

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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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Is There A Limit To Waiving A Non-Waiver Clause?

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When we first wrote about the loophole in non-waiver clauses that recognizes parties can orally agree to waive such clauses even one that explicitly say that there can be no oral waivers, we got some notes expressing incredulity. After the reality set in, the notes started asking whether there were any limits to this “loophole.” We at Ruminations didn’t know how to answer until we came across a May 12, 2017 decision from the Texas Supreme Court in a case where one of the parties has this name: Boo Nathanial Bradberry. The decision can be seen by clicking: HERE. It ruled there was a limit and its reasoning makes pretty good sense. [Read more…]

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Isn’t It Simple To Send A Notice? Apparently Not

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In the six years of our Ruminating in this forum, we’ve written a lot about notices, renewal options, and waivers. We just came across an otherwise insignificant case (other than to the parties themselves) illustrating some of the points we’ve tried to make over the course of this blog’s life.

Our story involves an unremarkable retail lease and a single, also unremarkable, lease amendment extending the original lease term for 20 years and granting the tenant a 5- year extension option thereafter. To exercise the extension option, the tenant was required to give 180 days’ prior irrevocable, written notice. The lease amendment did not specify what the notice had to say and did not give any “rules” for how a written notice needed to be given. Beyond those two substantive items, the lease amendment said that all other terms and conditions of the lease remained as originally set forth in the lease. [Read more…]

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We Can Waive Claims, Not Subrogation

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What’s an “evergreen”? An evergreen contract is one that automatically renews unless one party or the other affirmatively terminates it. An “evergreen” blogging topic is one that never dies; one that we can visit over and over. The topic of insurance waivers of subrogation is such an “evergreen.”

We just reviewed a March 22, 2017 decision from a United States District Court sitting in New Jersey. Let us tell you some things about it. It has a twist. [You can see it yourself by clicking: HERE.]

Allegedly “unsupervised, untrained, and unlicensed maintenance workers” employed by a residential landlord were accused of misusing (our euphemism) an acetylene torch and thereby setting a fire that destroyed tenants’ property. The tenants’ insurance company paid the losses and sued the landlord for recovery.
The landlord (almost certainly, the landlord’s own insurance company) responded that each tenant-insured had waived and released it from liability for such a fire. [Read more…]

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What Can Humpty Dumpty Recover If His Wall Wasn’t Finished On Time?

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Today, we return to the topic of “damages.” Our context will be “waiving” them. That way, we won’t feel as if we are duplicating postings of long ago such as the ones you can review by clicking: HERE or HERE or HERE.

The core “damages” one can expect to collect are designed to give the injured party “the benefit of its bargain.” That’s not the same as being made “whole.” Those core damages, ones that probably should never be “waived” are designed to give a party the money necessary to get what it “bought” in the first place. So, if the buyer was promised a car with a spare tire and the trunk turned out to be empty, the measure of its damages would be the cost of a spare tire. If a tenant was supposed to get trash removal “included” and the full container is surrounded by overflowing trash bags, the tenant is entitled to enough money to get the trash hauled away. If a builder contracted to put up a building and didn’t finish it, the customer would be entitled to the quantum of money that would pay to finish the building.

But, what about the cost of going out to buy that tire? What about the lost business from customers who ran from the store because of the “stink”? What about the cost to rent alternate space because the building was not completed by the contracted-for time? [Read more…]

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Don’t Expect A Thank You Card From The Insurance Carrier

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We’ve written about many of the “elements” implicated by today’s blog posting, but don’t think we’ve ever illustrated them in the context of a specific lease provision. Among them are the concepts of “no-fault, risk shifting” and “not spending negotiating capital, effort, time or money” on protecting an insurance company (unless you happen to be working for one).

Take a look at the following provision. We don’t offer it as the “perfect” text for every lease or, for that matter, any lease. You’ll have to decide that for yourself. We offer it so that we don’t have to stop writing this posting when you reach the upcoming period.

None of Landlord or Landlord’s agents, partners, members, employees or any other person acting on behalf of Landlord will be liable for, and Tenant waives all claims against Landlord and Landlord’s agents, employees, members, directors, contractors, and those acting for or under Landlord for any and all loss, cost, liability, damage and expense (including attorney’s fees and disbursements), penalties or fines incurred in connection with, or arising out of, any damage to, or loss (by theft or otherwise) of, any of Tenant’s property or of the property of any other person, irrespective of the cause of such injury, damage or loss (including the acts or negligence of any other tenant or occupant of the Shopping Center or of any owners or occupants of adjacent or contiguous property) and whether occasioned by or from explosion, falling plaster, broken glass, electricity, smoke, wind, water, snow or ice being upon or coming through or from the street, roof, subsurface, skylight, trapdoor or windows, electric wiring, plumbing, dampness, water, gas, steam or other pipes or sewage, or the failure of the air conditioning or refrigeration system, or the breaking of any electric wire, the bursting, leaking or running of water from any tank, washstand, water closet, waste pipe, sprinkler system, radiator, or any other pipe in, above, upon or about the Leased Premises or the Building or the Shopping Center, or which may at any time hereafter be placed therein, or from any other cause whatsoever.

[Read more…]

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How To Write Your Agreements So As To Get Away With Fraud

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Court opinions coming out of the Delaware Chancery Court are a delight to read. They are almost always clear and incisive. They are important and influential. That court doesn’t often “see” real estate disputes, but that doesn’t mean its work is irrelevant to our chosen day jobs. One such decision, published on November 24, does an incredible job of dealing with an agreement’s “we didn’t rely on any representations you don’t find in the text of this agreement” provision and that agreement’s “integration” or “merger” clause. As a bonus, it sheds some light on how and whether the fairly standard indemnification provision covers damages directly incurred by the indemnified party (a “first” party), or just for claims against the indemnified party by a “third party.” Unless you go directly to the Court’s written decision, you’ll need to keep reading if you want the answers [to all but the “indemnification” part; for that, you’ll need to wait until next week’s posting]. [Read more…]

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