Estopped in Your Tracks: How a Simple Form Can Trap Tenants
Published: November 13, 2025
Most lawyers think very highly of themselves. Nothing delights a lawyer more than citing an obscure, usually non-English phrase and mansplaining in a patronizing fashion to anyone who isn’t familiar with the term. Using these terms is clearly what justifies an attorney’s high rate.
Unfortunately, the meaning and use of these concepts can have significant legal ramifications for those that don’t appreciate their significance. One such commonly used term is a tenant estoppel. The concept of estoppel refers to the principle that a person cannot take a position that is contrary to a position they have previously taken. For example, if someone claims that the sky is green, they can be estopped from later claiming that the sky is blue. This prevents parties from opportunistically changing their position as circumstances change (such as during the course of litigation), ensuring greater clarity and certainty when it comes to parties’ legal rights.
Commercial leases almost always grant the landlord the right to request its tenant to sign a tenant estoppel. These seemingly innocuous forms generally include key facts and dates regarding the lease, such as the commencement date, the expiration date, and the rent being paid. Most importantly, they will also seek confirmation that neither party is in default of the lease. Many tenants will sign these forms when requested without giving much consideration.
The danger to the tenant is that this form can be held against the tenant in future disputes. For instance, there may be unresolved maintenance claims or conditions relating to the premises or project of which tenant is aware but which tenant has not raised with the landlord. If the tenant signs a tenant estoppel without raising these issues, the tenant may be estopped from later asserting those claims against the landlord. In other words, the landlord can claim that the tenant has waived its right to complain about the condition because the tenant previously confirmed in the tenant estoppel that there were no defaults under the lease. Thus, if a tenant is not paying attention, the landlord‘s request for an estoppel can significantly limit the tenant’s rights going forward. More aggressive landlords may even opportunistically request estoppel certificates to bring their leases current and avoid claims that may exist.
A sophisticated tenant will therefore carefully evaluate the circumstances of their lease before returning the required tenant estoppel to their landlord. Not only should the tenant carefully review the facts of their lease, including discussing any potential issues with their staff, the tenant should also carefully limit the language in the estoppel to ensure that their statements are not overly broad or otherwise unclear as it relates to the facts of the lease. A tenant who does not address these risks could undermine its legal rights and expose itself to unnecessary costs in the future. Just because an uncommon phrase is used for the document, a tenant should not ignore its legal significance.
To be clear, there are legitimate reasons for a landlord to request an estoppel. When a landlord is selling its building or refinancing its existing mortgage, the buyer/lender will want to ensure that the existing tenants do not have claims against the landlord for which the buyer/lender may become responsible. The worst-case scenario for the buyer/lender is to acquire the property or make the loan, only to find out that the tenant will be suing them for these preexisting issues. Thus, before the property is sold or financed, the buyer or lender often require the landlord to deliver tenant estoppels from their existing tenants to confirm that no defaults exist.
A tenant cannot and should not refuse to provide an estoppel when obligated under its lease. However, the tenant should carefully review its terms, coordinate with staff to address any outstanding issues, and protect itself against the risks that the estoppel poses for the tenant. Most landlords will be cooperative in this process and, in many instances, promptly address any such outstanding issues to ensure that the tenant returns a clean estoppel. For assistance with this process, please reach out to your real estate counsel at Weintraub Tobin.