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Waiver of Notice to Quit Provisions in Leases – Keep it Simple and Precise and No One Gets Hurt

Hinckley Allen Retail Newsletter

By: Noble F. Allen

July 11, 2013

Under Connecticut law, the only situation in which an eviction can be commenced without first serving the statutory Notice to Quit on the tenant is when the tenant’s lease has lapsed — specifically termed “lapse of time.” In all other scenarios, a landlord must first serve the tenant with a Notice to Quit as a condition precedent to the commencement of an eviction proceeding. However, in order for the landlord to bypass this penultimate step, the lease must have contained a waiver by the tenant indicating that it has expressly waived the service of the Notice to Quit in the event that the lease terminates by lapse of time. If the lease does not contain this express waiver, the landlord cannot seek refuge under the statutory protection of Conn. Gen. Stat §47a-25 (“Waiver of Notice to Quit”) and must therefore serve a Notice to Quit against the tenant before commencing the eviction action.

The service of a Notice to Quit based on lapse of time is a tricky proposition, particularly because it must be served on the tenant during the term of the lease, that is, while the tenant is still in possession of the premises — even though at that point the tenant may technically not be in default of the lease. Any Notice to Quit served on the tenant based on lapse of time after the lease has expired would be technically defective and could be legitimately challenged by a tenant who does not wish to vacate after its lease term has expired.

A recent Connecticut appellate court decision illustrates the importance of serving (or not serving) a Notice to Quit based on lapse of time. In Firstlight Hydro Generating Co. v. First Black Ink, LLC, 2013 Conn. App. LEXIS 327 (June 25, 2013), the landlord decided to bypass the service of the statutory Notice to Quit on a tenant based on lapse of time, almost to the landlord’s peril.

The lease contained the following language as part of the Default Provision:

” …. Lessee hereby EXPRESSLY WAIVES all right to any such demand or notice of reentry. The Lessee FURTHER WAIVES all right to any notice to quit possession as may be prescribed by the statutes relating to Summary Process.”

The tenant contested the eviction action during the trial and lost. It appealed the trial court’s judgment based on essentially these two arguments: (1) the tenant did not expressly waive its right to be served with a Notice to Quit, because the waiver language upon which the landlord relied was contained within the context of a default provision; and (2) the waiver language in the lease did not specifically state that the tenant expressly waived the service of a Notice to Quit based on lapse of time. The landlord, on the other hand, argued that notwithstanding its recognition that the waiver was embedded within the Default Provision of the lease, the language must nonetheless be read as an express waiver of a Notice to Quit based on lapse of time, particularly because that is the only circumstance under Connecticut summary process statutes upon which a tenant can statutorily waive the service of a Notice to Quit. The Appellate Court agreed; it therefore rejected the tenant’s challenge and upheld the lower court’s eviction judgment in favor of the landlord.

The legal challenge by the tenant right through the appeals process — which presumably involved considerable investment of time, energy, and attorneys’ fees — could have been avoided in all likelihood by the drafter of the Lease if two simple concepts had been employed:

The waiver of the Notice to Quit language should not be embedded into the Default Provision in such a manner that it implies, or infers that lapse of time is an event of default under the lease. This simply creates unnecessary confusion and ambiguity. Rather, in an abundance of caution, the waiver should be categorized under a separate heading in the lease so that it is conspicuous (i.e., “Waiver of Notice to Quit”); and more importantly,
The waiver language should contain simple, clear, and precise language in order to pulverize any doubts whatsoever about the tenant’s intent. For example, the following waiver provision would be much less susceptible to a future attack:

“Tenant hereby waives the service of a Notice to Quit only in the event that the lease terminates by lapse of time in accordance with Connecticut General Statute §47a-25.”

To be sure, there may be rare exceptions that could conceivably dictate the use of slightly different waiver language, but those rare exceptions should by no means dilute the general rule as stated above regarding the specific designation of the waiver provision and the need for clarity of content.