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Lease Drafting and Negotiation: A Checklist of Easily Overlooked Details

By John H. Lewis
November 01, 2003

Not surprisingly, most of the time we spend negotiating leases is devoted to discussions of significant, fairly predictable aspects of the landlord/tenant relationship: the fundamental business terms of the deal, details of business terms that were not fully settled before the lawyers became involved, and a variety of legal issues from assignment to zoning. As we all know, these substantive negotiations can sometimes consume more billable hours than our clients would prefer and (if we are fortunate) there are always other deals waiting in line demanding our attention. If we focus only on the major points, though, we may miss some meaningful issues and potential traps, for both the principals and their counsel, lurking in the mundane, “boilerplate” provisions of our leases. This article will explore several such provisions, not necessarily in order of importance. Although some specific suggestions are made and some sample provisions are included, the primary intent of this discussion is to provide a checklist of easily overlooked items to be examined.

Introduction; Start on the Right Foot. The introductory paragraph provides exactly what it says ' an introduction to the parties and the transaction. Be sure, then, that it states the full, correct legal name and state of residence or organization. If your form lease includes addresses in this paragraph, be sure that they are complete and correct. Finally, for ease of reference, the agreed-upon effective date of the lease should be set forth here, at the beginning of the document. (See more about the “Effective Date” below.)

Authority. The lease should contain a representation and warranty that the individuals executing the lease on behalf of any entity have the requisite power and authority to do so. Be certain, as well, to check and to comply with any legal requirements under applicable state law concerning which officers, partners, members or managers may be required to execute such documents.

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