An estoppel clause in contracts, sometimes called a “non-reliance clause,” refers to a provision that prevents a party from asserting or claiming certain rights or facts that are different from what they previously represented or agreed upon in the contract. It aims to avoid inconsistency or contradiction in the future by “estopping” or blocking a party from making claims that are inconsistent with their previous actions or statements.
Effect of estoppel clause
The purpose of an estoppel clause is to create certainty and prevent one party from taking advantage of another party's reliance on their representations or conduct.
When a party is “estopped,” it means they are barred or precluded from making a particular argument or claim due to their own prior actions or statements. Another common use of the word “estoppel” is its plural form: “estoppels.” This is just short-hand verbiage and likely refers to various estoppel certificates that are available pursuant to an estoppel clause in a contract. An example of this is discussed later in this article (below).
Policy underlying estoppel
The entire principle behind the doctrine of estoppel is the idea of fairness in people relying on others’ representations. Due to this, estoppel clauses are commonly found in various types of contracts, such as lease agreements, real estate transactions, employment contracts, and settlement agreements, but they can be found in almost any type of agreement context.
The basic premise is, once a person relies on your word (representations), they should not lose out simply because you changed your mind later; it prevents parties from being able to evade their obligations and promises.
Overall, some key purposes of a well-drafted estoppel clause are:
- Preventing inconsistent claims;
- Protecting innocent third parties (equitable estoppel) by extending the effects of the clause beyond the contracting parties to those who may rely on the representations or statements made in the contract;
- Encouraging reliance: for example, if a landlord provides an estoppel certificate stating that a tenant is current on rent payments, a potential buyer or lender can rely on this information during a property transaction;
- Certifying facts: such as in the landlord/potential buyer scenario above;
- Reducing disputes and supporting legal claims: In legal proceedings, an estoppel clause can be used as evidence to support a party's position or to limit the other party's ability to contradict earlier statements.
Examples of estoppel clauses
Provision in an insurance contract
Example: “The insured hereby represents and warrants that all statements and information provided in the insurance application, as well as any documents submitted in connection with this policy, are true, complete, and accurate to the best of their knowledge and belief. The insured acknowledges that the insurance company relies on the accuracy of such statements in determining the terms and conditions of this policy and the premium charged.
The insured agrees that, in the event of a claim, the insurance company may use the information provided in the application and other relevant documents to investigate and evaluate the claim. The insured further agrees that any false, misleading, or omitted information may result in a denial of coverage and may constitute a breach of this contract.
The insured is estopped from making any claims or assertions that contradict the information provided in the insurance application or policy documents. The insured waives any right to contest the accuracy or validity of such information, and this waiver shall be binding on all beneficiaries and successors in interest.”
In this example, the estoppel clause emphasizes the importance of truthfulness and accuracy in the insurance application and policy documents. It prevents the insured from later claiming that certain information was incorrect or misleading, especially if such claims would be detrimental to the insurance company or beneficiaries. By including this clause, the insurance company seeks to ensure that the insured takes their responsibility for providing accurate information seriously and avoids potential disputes or attempts to alter the facts after a claim arises.
Estoppel in real estate transactions between tenant and landlord
Example: TENANT ESTOPPEL CERTIFICATE
To: [name & address of Landlord]
Re: [property address]
[tenant name] (“Tenant”) has entered into that certain ground lease (the “Lease”) dated [date], pursuant to which [landlord name] is the landlord (“Landlord”), with respect to certain land located at [address] (the “Premises”).
1. With respect to the Lease, Tenant hereby certifies as follows:
(a) Tenant is in possession of the Premises, has unconditionally accepted the same and is currently paying the Minimum Rent and the Additional Rent reserved thereunder.
(b) The Lease is unmodified and in full force and effect.
(c) To the best of Tenant’s knowledge, there are no set-offs or defenses against the enforcement of any right or remedy of Landlord, or any duty or obligation of Tenant, under the Lease.
(d) Tenant is current in the payment of the Minimum Rent and the Additional Rent, including the Real Estate Taxes and the other charges due to be paid under the Lease. The Minimum Rent is $[amount] per month and has been paid through [date]. The Real Estate Taxes in the amount of $[amount] have been paid through [date].
(e) The commencement date of the term of the Lease was [date]. The Lease will expire on [date]. Tenant has no right to extend or renew the term of the Lease.
(f) Tenant has no right of first refusal, right of first offer, or option to purchase the Premises.
(g) Tenant has no knowledge of any uncured defaults on the part of Landlord under the Lease.
(h) Tenant has no knowledge of any event having occurred that authorized the termination of the Lease by Tenant.
2. This certificate shall be binding upon Tenant and its successors and permitted assigns and shall inure to the benefit of Landlord and its successors and assigns.
3. Tenant represents that the person executing this certificate on behalf of Tenant is authorized to do so.
4. All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Lease.
Dated: [date]
TENANT:
[tenant’s name]
By:
Print Name: [name of signatory]
Print Title: [title of signatory]
In real estate transactions, estoppel certificates are commonly used during the sale or refinancing of commercial properties, especially those involving multiple tenants. In this context, the tenant may be required to provide an estoppel certificate to the potential buyer or lender, confirming key lease terms such as:
- The commencement and expiration dates of the lease.
- The amount of rent and the frequency of payments.
- Any additional fees or expenses payable by the tenant.
- The security deposit held by the landlord.
- Any outstanding obligations or defaults under the lease.
Since estoppel certificates play a significant role in transactional due diligence, it is common for the requesting party to include a requirement for the certificate in the terms of the transaction.
Homeowners Association (HOA) estoppel
Example:
[Homeowners Association Name] Estoppel Certificate
Date: [Date of Issuance] Property Address: [Property Address]
To Whom It May Concern:
This Estoppel Certificate is being provided by [Homeowners Association Name], hereinafter referred to as "the Association," in response to the request for information regarding the property located at [Property Address].
1. Account Information:
Owner(s) of Record: [Name(s) of Current Owner(s)]
Association Account Number: [Account Number]
Mailing Address: [Mailing Address of the Owner(s)]
2. Financial Information:
Current Balance Due: $[Amount]
Regular Monthly Assessments: $[Amount] (as of [Date of Last Assessment])
Special Assessments: None outstanding as of [Date of Estoppel]
Other Charges: [Description and Amount of Any Other Charges]
Total Amount Due and Payable: $[Total Amount]
3. Legal Information:
Legal Disputes: There are no pending legal disputes involving the property as of [Date of Estoppel].
Violations: There are no unresolved violations related to the property as of [Date of Estoppel].
Architectural Approval Requests: No outstanding architectural approval requests as of [Date of Estoppel].
4. Transfer Information:
Transfer Fee: A transfer fee of $[Amount] is required upon the transfer of ownership.
Right of First Refusal: The Association does not possess a right of first refusal on the property.
5. Rules and Regulations:
The property is subject to the covenants, conditions, and restrictions of the Association. The current rules and regulations can be provided upon request.
6. Expiration:
This Estoppel Certificate is valid until [Expiration Date], after which the information provided herein may no longer be accurate.
Please Note:
This Estoppel Certificate is intended to provide a snapshot of the property's financial and legal status within the Association as of the date of issuance. The Association makes no warranties, express or implied, regarding the accuracy of the information provided herein.
Authorized Signature: ________________________
Printed Name: [Name of Authorized Person]
Title: [Title of Authorized Person]
Date: [Date of Signature]
For questions or further information, please contact [Contact Information for Association].
Also known as an HOA estoppel certificate or an HOA resale certificate, is a document provided by a homeowners' association (HOA) in the context of a real estate transaction involving a property that is subject to the HOA's governing rules and regulations. It is typically requested by a potential buyer or their agent when purchasing a property within a community or development that has an HOA. This example provides a general outline of the kind of information that might be included in such a document.
The purpose of an HOA estoppel is to provide the potential buyer with important information about the property's status within the HOA and any financial obligations associated with the property. It helps the buyer understand the current condition of the property with respect to the HOA's rules, assessments, fees, and other relevant matters. It is an essential part of the due diligence process for potential buyers.
The HOA estoppel certificate may include the following information:
- The current status of the property's HOA dues and any special assessments.
- Any outstanding amounts owed by the current owner to the HOA.
- Pending or planned assessments or special projects that may affect the property.
- The property's compliance with the HOA's rules and regulations.
- Any existing violations or disputes related to the property.
The potential buyer may rely on the information provided in the HOA estoppel to make an informed decision about purchasing the property, as it discloses the financial obligations and legal obligations associated with living in the community.
Legal theories and equitable remedies regarding estoppel
- Agency estoppel: this refers to a situation where one party represents that they have agency or authority on behalf of someone else and the party contracting with them relies on this as a result. The person making these representations cannot wiggle out of the contract later by saying “I didn’t really have authority to make that promise.”
- Estoppel by deed: Also known as estoppel by record, this is a legal doctrine that prevents a party from denying the truth of certain facts or assertions made in a deed or other written instrument related to real property. It is a form of estoppel that arises from the act of recording the deed or written instrument in the public records.
- Notice of estoppel: This is a communication issued by one party to another party, typically in the context of a real estate transaction, to inform the recipient (often a tenant or property owner) about certain facts, conditions, or statements that may be relevant to the transaction.
- “Estoppel fees” might refer to fees or costs associated with obtaining an estoppel certificate. When dealing with real estate transactions, obtaining an estoppel certificate from a tenant or a party with existing rights to a property can involve administrative and processing costs. The requesting party, such as a potential buyer or lender, might need to pay a fee to the party providing the estoppel certificate.
- Partnership by estoppel: Also known as implied partnership or partnership by holding out, is a legal doctrine that arises when a person or entity holds themselves out as a partner in a business or enterprise, and others reasonably believe them to be a partner based on their actions or representations. While no formal partnership agreement may exist, the law treats the individual as a partner for certain legal purposes to protect the interests of third parties who have reasonably relied on the appearance of a partnership.
- Promissory estoppel: is a legal theory used in a lawsuit for one party to recover its losses when there was no written agreement. The party will typically file their legal claims on the basis of a promise made (as opposed to on the basis of a written contract) when the party's reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise. The elements of a promissory estoppel claim might vary slightly by jurisdiction, but generally are that “(1) there was a promise with clear and unambiguous terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.
