Most commercial leases contain a clause stating that the landlord’s acceptance of less than full performance by the tenant does not constitute a waiver of the landlord’s right to demand full perfomance. These clauses are commonly known as “no-waiver” clauses.
In a recent California Court of Appeal decision, Gould v. Corinthian Colleges, Inc., the court held that a “no-waiver” clause may be itself be waived. In Gould, the court explained that waiver is “the intentional relinquishment of a known right” and that waiver may be implied from conduct. The court noted that the existence of a “no-waiver” clause in a lease “would militate against a finding of waiver under most circumstances,” but the landlord’s conduct could nonetheless be found by a trial court to have impliedly waived the “no-waiver” clause.