News & Analysis as of

Six Considerations for Rent Arbitration Clauses in Commercial Leases

When a commercial tenant exercises an option to renew a lease it is imperative that the landlord and tenant have effective mechanisms in place to determine the rent for the renewal term. Ideally both parties will agree on the...more

Delaware Bankruptcy Court Faces Split Among the Courts Concerning Scope of a Landlord’s Claim Against a Tenant in Bankruptcy

The Delaware bankruptcy court will soon be forced to rule on the scope of a landlord's claim in bankruptcy, an issue on which courts around the country have been split for many years. In the case of In re Masonite Corp. (Case...more

Mainebiz Real Estate Insider – Protecting the Penny Wise in a Lease

Some penny wise clients resist advice to get real estate out of their own individual names, opening themselves to unnecessary risk. Fortunate clients, who have not met the “trial bar” up close and personal, sometimes still...more

What’s the Use? Use Clauses in Commercial Leasing

Most retailers and landlords will have seen the recent announcement by Loblaws wherein they stated that they were going to start selling fresh food in certain Shoppers Drug Mart locations, the perfect example of the evolution...more

Real Property, Financial Services & Title Insurance Case Law Update

I. FLORIDA STATE CASES – JOURDAN HAYNES & ILAN NIEUCHOWICZ - - Landlord/Tenant: lessor did not breach commercial lease by failing to complete construction by date certain where lease did not provide date by which...more

Lenders Can Prepare for Tenant Offset Rights in SNDAs

Tenants’ limited recourse to their landlords has made “offset rights” a major issue in negotiating Subordination, Non-Disturbance and Attornment Agreements (SNDAs). Tenant offset rights arise when the tenant has the...more

Mainebiz Real Estate Insider - Lease Rights – Should Landlords Give Tenants the Right to Sublease or Assign Interest?

An issue that creates a great deal of discussion in lease negotiations relates to the right of a tenant to assign or sublease its interest in a lease to an unrelated party. This complex situation opens up several...more

Why Tenants should require an SNDA or risk some disturbing results.

Introduction. We all know that lease forms are heavily weighted in favor of landlords. Through negotiation, experienced real estate lawyers attempt to lessen the impact on the tenant of some of the more onerous provisions...more

Frustration of Purpose: A Frustrating Doctrine

Next Gen Capital, LLC v. Consumer Lending Associates, LLC illustrates the difficulty a tenant faces when trying to avoid liability for breaching a lease based on the “frustration of purpose” defense. No. 1 CA-CV 12-0624...more

GST & Real Property Leases – Implications Of The MBI Case

The Full Federal Court recently handed down its decision in MBI Properties Pty Limited v Commissioner of Taxation [2013] FCAFC 112 ("MBI Case"). The decision supports the view that neither the vendor or purchaser of a...more

Tenants Beware on Commercial Leases

Commercial leases can be dozens of pages long. It’s easy to miss something critical — such as who’s responsible for HVAC repairs or what the tenant can or cannot do in the space. While there are many consumer protections...more

Recent California Cases Follow Riverisland Decision

In March of this year, we reported on the California Supreme Court decision in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn., which held that a borrower could sue its lender for fraud based on oral...more

Planning for Tenant's Changing Needs: Options To Renew, Expand, Cancel, or Reduce

As a tenant's business changes, its needs and space requirements also change. If possible, a commercial tenant should anticipate the possibility of changing needs by negotiating certain beneficial options and rights into the...more

Co-Tenancy Complexities

Tenants seek co-tenancy rights while landlords are reluctant to grant them. Tenants often rely on a certain tenant mix of national or regional tenants to be a draw for customers to visit the shopping center. But what happens...more

Construction Concepts Tip #5: Developer Protection Against Tenant-Improvements

Before Contracting to Lease Commercial Space, Be Sure to Protect the Property Against Potential Liens - As multiuse high-rises and commercial buildings are once again springing up in areas of Downtown, Brickell, and...more

Navigating Commercial Lease Assignment Provisions: Tenants Beware

Landlords use lease assignment provisions to maintain control over the quality, composition, and financial capability of their tenants. However, assignment provisions can have a chilling effect on a corporate tenant’s...more

EPA Clarifies "Innocent Tenant" Liability Under CERCLA

Recent EPA guidance imposes new environmental due diligence and compliance requirements on prospective commercial and industrial tenants. The guidance purports to clarify an exemption from liability, but actually confirms...more

Remedies of a Commercial Landlord

If a tenant defaults on their obligations under a commercial lease, a landlord may wish to pursue a remedy. There are two types of tenant defaults – monetary or non-monetary. The type of default will determine the landlord’s...more

Ownership of Leasehold Improvements

Many commercial leases provide that other than a tenant’s own trade fixtures and merchandise, pretty well everything else that the tenant installs in the premises is considered to be a leasehold improvement. Moreover, all...more

North Carolina Securities Act Claims Take Shape In The Business Court

There is little case law under the North Carolina Securities Act. But last week, in NNN Durham Office Portfolio 1, LLC v. Highwoods Realty Limited Partnership, 2013 NCBC 12, Judge Gale took several steps into that uncharted...more

EPA Lifts Threat of CERCLA Liability for Some Tenants of Brownfields

Tenants who lease currently or formerly contaminated property can now benefit from protections from cleanup liability that were once available only to purchasers of such property. EPA announced its new policy in a December...more

Small Tenant Lease Negotiating

Startups, small tenants and non-profits can successfully negotiate several key leasing issues that materially improves the terms of their office space leases. By Peter Pokorny, Real Estate Counselors, PLLC. ...more

Should Tenants Worry About Environmental Liabilities For Their Leased Property?

By 2013, most property owners have heard of the advantages of performing environmental due diligence and conducting “All Appropriate Inquiry” by obtaining an Environmental Site Assessment before purchase. Doing so is key to...more

Brownfield Tenants Gain CERCLA Liability Protection

Good News: Brownfield Tenants Gain CERCLA Liability Protection - In December 2012, an Environmental Protection Agency (EPA) Guidance Memo set out a new EPA enforcement policy. In sum, on a discretionary basis, the...more

EPA Guidance Further Clarifies The Protections Available To Tenants Under Superfund’s BFPP Defense

As part of an evolving effort to encourage the redevelopment of brownfield properties, the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) was amended in 2002 to provide...more

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