Feature

Trade Retailer's Right to 'Go Dark' for Your Right to Recapture Space

April 21, 2021    
Many, if not most, retail tenants hesitate to sign leases containing continuous operation clauses. Of course, this dogged determination to maintain the right to go dark and not be forced to operate no matter how bad business becomes is nothing new. But there can be no doubt that the COVID-19...
Traps to Avoid

Boilerplate Booby Trap: Clauses Requiring Written Agreement for Lease Termination

April 21, 2021    
Here’s a suggestion for anyone who uses a standard boilerplate lease: Look through the document and see if it includes a statement like this. If it does, it’s most likely to be toward the end of the lease. This Agreement may not be changed or terminated, and none of its provisions may...
Brokers’ Buzz

Cut Commission Owed on Tenant's Cancellation Fee

April 21, 2021    
Some of your tenants may have an option to cancel the lease early by paying a cancellation fee. Under many standard brokerage agreements, when and if the tenant exercises that option, you must pay the broker commission on the full cancellation fee you receive from the tenant. That’s a raw...
Owner Loses

Court Rescues Tenant from Being Evicted for Minor Mistake

April 21, 2021    
What Happened: Technically, the landlord had a perfectly valid case to evict. But there was also a clear explanation why Bed Bath & Beyond (BB&B) didn’t pay its late rent until after the 10-day cure notice period expired. Its corporate headquarters was closed due to COVID-19 on the...
Owner Loses

'Substantial Compliance' Saves COVID-Strapped Tenant from Nonpayment Eviction

April 21, 2021    
What Happened: From March to October, a steakhouse couldn’t come up with its monthly rent because of the COVID-19 public health orders restricting indoor dining, the meat and potatoes of its business. But the steakhouse tried its best to be a faithful tenant. First, it asked for a rent...
Owner Wins

Tenant's Failure to Pursue Required Zoning Change Justifies Lease Termination

April 21, 2021    
What Happened: One nonpaying tenant that didn’t catch a break from the courts was the one that leased store space for use as a boxing studio. The lease obligated the tenant to “pursue and diligently prosecute a change” in zoning that would allow the property to be used for such...
Feature

COVID’s Impact on Construction Duties Under the Lease: Lessons for the Future

March 23, 2021    
By Sujata Yalamanchili and Dylan Weber  
Pop Quiz

Can Tenant Waive Landlord’s Duty to Mitigate Damages?

March 23, 2021    
WHAT HAPPENED A restaurant tenant isn’t happy about what it deems to be the landlord’s inadequate efforts to market the mall and abandons the property. Instead of immediately seeking a replacement, the landlord lets the space remain vacant and sues the tenant for rent. We didn’t...
Brokers’ Buzz

Landlord Can't Use Minor Violation as Excuse to Not Pay Retainer Fees

March 23, 2021    
In addition to commissions on actual leases closed, many landlords agree to pay their real estate brokers a monthly retainer. This is an effective way to ensure the availability of brokers you know and trust. But retainer fee arrangements can also make it harder to break up when and if things go...
Owner Wins

Pandemic Isn't a 'Casualty' Event

March 23, 2021    
What Happened: Another retail tenant has failed in its bid to use COVID-19 as an excuse for not paying rent. The tenant in this case was a New York City outlet of national retail chain The Gap, which claimed, among other things, that the pandemic and its resulting shutdowns constituted a “...