Two month delay in returning tenant’s late payment held not to constitute waiver.

Commercial tenant notified landlord that it intended to terminate the lease about eight month’s early and pay the early termination fee specified in the lease before move-out.  However, tenant  did not tender the early termination until five days after move out.  Landlord did not cash the check, but did not return it  for almost two months. In the meantime, landlord claimed that tenant had not properly exercised the right of early termination and was in default for vacating prematurely and accelerated to rent for the balance of the lease term.

Tenant argued that landlord had waived its right to object to the late payment by sitting on the check and also because the tenant had advised the landlord the payment would be late and the property manager said “no worries mate.”

The court ruled that .the Landlord's delay in returning the uncashed check was insufficient to support a defense of waiver. See Linens of Paris, Inc. v. Cymet, 510 So. 2d 1021, 1022 (Fla. 3d DCA 1987); Mercede v. Mercede Park Italian Restaurant, Inc., 392 So. 2d 997, 998 (Fla. 4th DCA 1981) (mere inaction and delay does not  constitute waiver).

BRANDON OF B, LLC and GOTHAM 55TH ASSOCIATES, L.P., vs. HRN MARKETING SERVICES, INC., Circuit Court, 11th Judicial Circuit in and for Miami-Dade County 2006.13 Fla. L. Weekly Supp. 583a