Drafting Tips

Get 5 Key Protections When Transferring Construction Warranties to Tenants

November 29, 2022    

It’s a common scenario that’s likely to arise any time a landlord hires outside contractors to carry out substantial improvements on a tenant’s premises: The tenant requests that the landlord “transfer” any construction warranties that the tradespeople may have...

Ensure Percentage Rent Flow When Tenant Assigns or Sublets

August 29, 2022    

Percentage rent is typically based on the gross sales generated from the leased space rather than a tenant’s gross sales. So, an assignment or sublet by a tenant with strong sales to a business with weaker sales could take a significant bite out of percentage rent. You could even end up...

Lease Guaranty vs. Suretyship: What's the Difference & Why It Matters

July 20, 2022    

There are some tenants that you know will have the assets necessary to pay their rent every month. And then there are the more financially risky ones. When leasing to these businesses, it’s advisable to get a more financially stable third party to sign an agreement backing the tenant...

‘Best Efforts’ vs. ‘Commercially Reasonable Efforts’: What the Difference Is and Why It Matters

February 20, 2022    

Chances are, your standard lease form includes one or more provisions requiring the tenant to exercise some kind of “efforts” to achieve a desired but uncertain result or outcome.

Set 10 Limits When Letting Franchisor Assign and Sublet Without Consent

June 17, 2021    

Waiving consent rights doesn’t necessarily require ceding all control.


Leasing to franchise businesses can ensure a stream of large, financially stable, and nationally recognized tenants. But it also poses unique leasing challenges. To leverage the full strength of...

Limit Financial Risk When Granting Tenants an Operating Expense Cap

February 18, 2021    

Death and taxes aren’t the only certainties in life. So are rises in the costs of operating commercial property. That’s why landlords generally require tenants to pay their share of operating expenses. And while most tenants are willing to go along with this arrangement...

Force Majeure & COVID-19: New Case Offers 4 Key Pointers

July 24, 2020    

Can a tenant who can’t operate due to a COVID-19 public health emergency order rely on the force majeure clause of its lease to forgive its obligation to pay rent?

This has been perhaps the biggest question in all of commercial leasing law ever since the pandemic began. And now...

Don't Make These Three Bad Assumptions When Drafting Lease

December 12, 2019    

Even before the case starts, landlords are at a distinct disadvantage when they go to court over a lease interpretation: Because the landlord drafts the lease, courts will read any ambiguity in the tenant’s favor. Regrettably, landlords all too often aggravate this disadvantage by making...

Get Right to Increase Security Deposit After Key Events

January 17, 2019    

Security deposits are essential for commercial real estate owners to protect their interests when leasing space to tenants. That’s because a security deposit can be used in a number of ways to minimize the effect when a tenant doesn’t meet its lease obligations. But a security...

Use 'First-Run' Language in Movie Theater's Use Clause

September 26, 2018    

If you own a shopping center or mall, you know that the success of your tenants is connected to the amount of foot traffic that you can bring in. Movie theaters are a great example of one type of tenant that attracts crowds. But not all movie theaters show films that are of interest to a wide...

Draft Narrow Termination Provision to Keep Tenant from Exiting Deal

August 30, 2018    

If you own office building or retail space you’re probably very reluctant to give a termination right to your tenants in their leases. You run the risk of losing a large amount of money; allowing a tenant to get out of its lease early can render costly improvements and other expensive...

Control Use and Operation of Food Court Area

March 27, 2018    

Adding a food court—a special area dedicated to small restaurant tenants selling a diverse selection of carry-out or ready-to-eat food customers can consume in a common seating area—can be a great way for shopping center owners to generate income. And it can help extend the length of...