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Landlord and tenant — lease — cancellation — grounds for — failure to pay rent on time — previous late payments of rental and acceptance thereof by landlord — effect — tenant entitled to resist eviction notwithstanding non-waiver and non-variation clauses in lease agreement — subsequent late payment not accepted by landlord — no waiver or estoppel created
An attempt by a landlord (lessor) to go back in time to previous defaults of rental payments can be resisted by the tenant in a claim for his eviction. He will be able to raise the exceptio doli against the landlord, notwithstanding the existence of a non-waiver and a non-variation clause in the lease agreement. However, this would not apply where the tenant once again makes a late payment the following month and the landlord cancels within the month or before the remedy of the breach is effected. Because of the existence of these clauses, the tenant cannot be heard to argue that the previous late payments have been accepted in circumstances amounting to waiver or estoppel.
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