Drafting Tips

‘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...

Make Sure Indemnification Clause Covers All Bases

February 23, 2018    

While sometimes an owner’s failure to keep a center safe causes issues, tenants are also capable of actions that cause problems, too. And that’s where arguments and litigation arise. An owner is typically responsible for maintaining the common areas of its building or center, so if...

Keep Crowds Under Control at Your Property

May 18, 2017    

Depending on the particular synergy of tenants that you are going for, renting space to a restaurant tenant may be a desirable way to fill up space in your building or draw customers to your center. But problems can arise with restaurant tenants that just don’t apply to retail tenants. For...

License v. Lease: When to Use a License Rather Than a Lease

August 10, 2016    

CRE owners should be aware of situations in which a license agreement may prove to be more beneficial than a leasehold interest. The key factors that distinguish a license from a lease are the ability to revoke the licensees’ use at will, and the degree of control that the property owner...