Can Landlord Waive His Right to Reject Tenant's Option to Renew the Lease ?
In Atkin's Waste Materials, Inc. V. May (34 NY2d 422, 426, 358 NYS2d 129, 314 NE2d 871 [4th Dept.,1973]) the tenant had failed to perform the covenants in the lease, which was a condition precedent to the right of renewal, the landlord kept the notice of renewal for four months before it rejected it, and during the period of the alleged defaults and until the end of the lease, about eleven months after the notice of renewal, it continued to accept rent payments.
"Inasmuch as it had accepted rental payments with knowledge of the default and without attempting to terminate the lease in the method provided for by its terms, the Court held that the city had waived the default and that the tenant had properly exercised its option to renew." (see footnote 138 to Rasch's Landlord and Tenant, Fourth Edition, 11:40).
In Jefpaul Garage Corp. v. Presbyterian Hosp. in City of New York (61 NY2d 442, 462 NE2d 1176, 474 NYS2d 458 [1st Dept.,1984], the court pointed out that even in light of a clear and unambiguous non-waiver and merger clause in a lease, a landlord can waive its right to reject a tenant's option to renew.