We agree with a non-voluntary provision that absolutely excludes a waiver under the most general terms, which could be totally ineffective. However, we cannot agree that a non-winter provision is totally ineffective in preventing a waiver by conduct on which the parties agree will never lead to a derogation. Such a principle of the application of the contract would be „illogical, for it is precisely the conduct that the clause must authorize [without giving up] that would be reversed to waive the clause allowing [a party] to participate in the conduct [without renouncing]. The court reacted to the injustice that a lessor had terminated a tenancy agreement on the basis of a late tenancy when the delay had been healed at the time of the termination. But in doing so, the court opened the door to subsequent courts to ignore the non-waiver clauses of leases. This can also happen in situations where a tenant has the opportunity to heal simply because the landlord accepted the rent at a time when he was aware of the late payment. This is a big leap from what motivated the TSS-Seedman court to ignore Jefpaul Garage, and it has serious repercussions to this day. The lesson to be learned from the Hamilton decision is that landlords must ensure that they demand the full monthly payment of the rent. In the event that a lessor submits a lease, he must do so in a written agreement that preserves all the rights of the lessor under the lease agreement, including all rights stipulated in a non-waiver clause in the lease agreement. This magic clause is a perfect solution for the delays and inefficiencies that Koops inevitably, but generally innocently, experiences when it comes to imposing its internal regulation. It informs shareholders that the day their co-op may decide to apply rules that had not previously been applied. It provides justified relief for a complaining shareholder who innocently suffers from the consequences of such an offence.
And by expressly removing all written declarations of waiver, it denies a standard fabrication by offenders that a board of directors or a staff member has told them that a particular rule would not be applied against them. We now return with the whole circle to the above question and to two current cases concerning the application of legislation prohibiting washing machines. In Cannon Point North Inc. vs. Abels (1993), the Tribunal rendered a summary judgment to a koop who did not find a waiver because of the „comprehensive non-waiver clause“ and had no problem with the Co-op`s prior non-recourse to the washing machine ban. But the court of 255 Fieldstone Buyers Corp. vs. Michaels (2003) withdrew, at least in part, from the march to Sanity.
She cited Dice for asserting that, despite a non-waiver clause, a co-op could not have a summary judgment that would impose a ban on a washing machine for many years. The Tribunal rejected the applicability of its own Cannon Point decision on the grounds that „the board immediately intended to enforce a new internal regulation.“ In Guardia v. 250 West Street Corp. (1994), which was decided the same month, the Appeal Division upheld a summary decision request by a lessor resulting from an alleged misallocation of a tenancy agreement by a tenant. The court cited Jefpaul Garage for the application of the tenancy rule „excluding the landlord`s finding of waiver of the [consent obligation for any assignment] on the basis of his acceptance of the rent with knowledge of an offence. . . . In this situation, koops are victims who have long and costly litigation instead of quick requests for summary judgments, and with a role of cubes in court to try to enforce their internal regulations.