Waiver must be done voluntarily and there must be an affirmative act that accompanies the waiver to show such intent


Law Lessons from Lake Estates Condominium Assoc., Inc. v. Falcon Engineering LLC, N.J. Super. Law Div. (Natali, P.J.Ch.), MIDDLESEX COUNTY, DOCKET NO. L-6171-15, August 31, 2017:

Waiver is defined as “the intentional relinquishment of a known right.” Cty. of Morris v. Fauver, 153 N.J. 80, 104 (1998) (citations omitted). Thus, waiver must be done voluntarily and there must be an affirmative act that accompanies the waiver to show such intent. Id. (citation omitted). Waiver is “a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded and insisted on.” Allstate Ins. Co. v. Howard Sav. Institution, 127 N.J. Super. 479 (Ch. Div. 1974) (citation and internal quotation omitted). “A waiver cannot be divined but, instead, must be the product of objective proofs: the intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference.” Sroczynski v. Milek, 197 N.J. 36, 63-64 (2008) (internal citations and quotations omitted).

Additionally, waiver of a right “must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.” Aron v. Rialto Realty, 100 N.J. Eq. 513 (Ch. 1927), aff’d, 102 N.J. Eq. 331 (E&A 1928).

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