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The Leasing Hotline
WAIVER AND ESTOPPEL
A trial court cannot make a finding in favor of a party based upon waiver and estoppel unless those affirmative defenses are properly pled. Louie's Oyster, Inc., v. Villaggio Di Las Olas, Inc., No. 4D04-3488, Court of Appeal of Florida, Fourth District, Nov. 2, 2005.
The tenant commenced an action against the landlord seeking declaratory relief regarding the rights and obligations of each of the parties under the lease because it believed that the landlord incorrectly calculated the amount owed by the tenant for common area maintenance. The trial court entered a final order in favor of the landlord based upon the theories of waiver and estoppel, holding that the tenant was not allowed to object to the landlord's methods for calculating common area maintenance because it had not objected in the past. The appellate court reversed. It held that waiver and estoppel are affirmative defenses that must be pled. Because the landlord had failed to plead waiver and estoppel, those defenses were waived and should not have been the basis of the trial court's decision.
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