Tenants (as well as landlords) seeking an early exit from a Virginia lease of more than 5 years have been given an assist by the Virginia Supreme Court in a recent case causing consternation among commercial real property owners and their mortgage lenders. The decision in The Game Place, L.L.C. v. Fredericksburg 35, LLC, 813 S.E.2d 312 (Va. 2018), allowed a tenant that wished to get out of its 15-year lease to terminate early on the basis of form over substance. Notwithstanding the clear intent of the parties to create a lease of 15 years, the failure of the lease to be in the form of a deed, as prescribed by the Virginia Statute of Conveyances, rendered it a month-to-month lease, thus, terminable by the tenant when the lease no longer served its business needs.
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