Plugging Loopholes

Make Tenant Adapt Insurance Coverage to Changing Circumstances

August 28, 2015    
Sadly, public violence has escalated in the past few years, with attacks in workplaces, entertainment venues, and malls. Regardless of the security measures you take to prevent or deal with violent attacks occurring on your property, some things will always be out of your control. From time to time...
Q & A

Ensuring Right to Enforce Lease with Corporate Tenant

August 28, 2015    
Q: I tend to lease space to a lot of partnership and corporate tenants. I recently learned that if a business hasn’t taken the necessary partnership or corporate actions to allow it to enter into a lease, I could end up having trouble enforcing the lease later. Are there any provisions I can...
Owner Wins

Owner Adequately Mitigated Damages

August 28, 2015    
Facts: A shopping center owner sought to recover damages from a liquor store tenant after it breached its lease and lease guarantees by failing to pay rent. After the owner sent the tenant a notice to quit possession of the premises, the tenant moved out. The owner sued the tenant. The tenant...
Owner Loses

Trial Needed to Determine Fraudulent Nondisclosure Claim

August 28, 2015    
Facts: A tenant negotiated two leases for space for two of its upscale restaurants at an Atlantic City, N.J., pier. The tenant was interested in the particular spaces because two other upscale restaurants had also signed leases for nearby space with the owner.
Feature

Shift Responsibility for Attorney's Fees to Tenant

August 11, 2015    
Attorney’s fees are a point of contention in many owner-tenant disputes. Typically, one party argues that the other party should pay for its own legal fees and the legal fees the first party has incurred as a result of the lawsuit or other legal proceeding.
Q & A

Termination Being Affected by Yellowstone Injunction

August 11, 2015    
Q: After my tenant defaulted by failing to take care of several maintenance issues it was responsible for under the lease, I sent it a 30-day notice to cure. The notice also specified that if the tenant didn’t fix the maintenance problems, its lease would be terminated. The tenant claims that...
Dos & Don'ts

Don't Make Handwritten Corrections to Lease Documents

August 11, 2015    
Sometimes a clerical mistake, such as an incorrect date or a misspelled name, is made on a lease document. But if the mistake isn’t caught and corrected, it can lead to a dispute later between you and your tenant—especially if the mistake works in the tenant’s favor and it’s...
Dos & Don'ts

Don't Make Blatantly Unfair Requests During Negotiations

August 11, 2015    
You may have a “wish list” for items you would like to include in your lease with a prospective tenant, but be careful not to overdo it. Big box tenants or those with a lot of bargaining power are more likely to balk at requests for things that are too owner friendly, but continue...
Dos & Don'ts

Don't Rely on Implied Continuous Operations Covenant

August 11, 2015    
Don’t rely on an “implied” continuous operations covenant—that is, one that isn’t expressly stated in the lease—if you want your retail tenant to continuously operate from its space. Some courts might find that one exists anyway in certain situations, such as...
Dos & Don'ts

Take Additional Factors into Account with Electronics Tenant

August 11, 2015    
If you’re negotiating a lease with a tenant that primarily sells consumer electronics and appliances, don’t agree to exclude sales of extended warranties, subscriptions, repairs, delivery, and other services from the definition of “gross sales.” Those sales can represent a...