Waivers of subrogation are one of the most effective and least controversial—risk-allocation tools available to Landlords and Tenants. Unlike “additional insured” provisions, waivers work by keeping insured losses with the insurer that agreed to cover them, rather than turning those losses into litigation.
Below are sample waiver of subrogation clauses, drafted separately for Ontario residential and commercial leases. The language reflects how courts and insurers actually treat these provisions in practice.
Residential Lease – Waiver of Subrogation
Waiver of Subrogation
“The Tenant shall maintain tenant’s insurance covering the Tenant’s personal contents and personal liability. Such policy shall, to the extent permitted by the insurer, include a waiver of subrogation in favour of the Landlord with respect to losses covered by the Tenant’s insurance.
The Landlord and the Tenant each waive all rights of recovery against the other for loss or damage to the extent such loss or damage is insured or required to be insured under this tenancy agreement, except in the case of wilful misconduct or gross negligence.”
Commercial Lease – Waiver of Subrogation
Waiver of Subrogation
“The Landlord and the Tenant each hereby release and waive all rights of recovery against the other, and against their respective officers, directors, employees, agents, and invitees, for loss or damage to the extent such loss or damage is insured or required to be insured under this Lease, notwithstanding that such loss or damage may have been caused by the negligence of the other party, except in the case of wilful misconduct.
Each party shall cause its respective insurers to waive any right of subrogation consistent with this provision.”
Brian Madigan LL.B., Broker
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