Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
In the Spotlight: Tenants Should Keep Watch for Innocuous-Appearing Provisions
Most leases provide for a rent abatement in the event of a casualty to either the building or leased premises that renders the leased premises unfit for the tenant's use until the casualty damage has been repaired. At first glance, the only items to be negotiated in such provisions are those that clarify what portion of the building or premises ' as the case may be ' must be affected in order to provide for an abatement, how quickly the landlord is obligated to restore the damage, and under what circumstances the parties may terminate the lease. There really should be no discussion as to whether or not the tenant is entitled to an equitable rent abatement, but some lease provisions limit the abatement to those instances in which the tenant is not responsible for the casualty. The way this onerous provision is usually drafted, it appears to be innocuous boilerplate. It is an unfair shifting of the risk of casualty from the landlord to the tenant, particularly in situations where (as in most net leases) the tenant reimburses the landlord for its proportionate share of the landlord's casualty insurance premiums (and sometimes even deductibles). Most landlords will readily delete the provision when challenged, but the tenant's counsel must be alert to request such a deletion.
A related provision that also should be stricken by savvy tenants is the similarly innocuous-appearing provision requiring the tenant to return the leased premises to the landlord at the end of the term “in the same condition as existed at the beginning of the lease term, reasonable wear and tear and casualty damage not caused by the acts or omissions of the tenant excepted.” This provision also unfairly shifts the casualty risk to the tenant and should not be acceptable to a tenant.
William Crowe
Most leases provide for a rent abatement in the event of a casualty to either the building or leased premises that renders the leased premises unfit for the tenant's use until the casualty damage has been repaired. At first glance, the only items to be negotiated in such provisions are those that clarify what portion of the building or premises ' as the case may be ' must be affected in order to provide for an abatement, how quickly the landlord is obligated to restore the damage, and under what circumstances the parties may terminate the lease. There really should be no discussion as to whether or not the tenant is entitled to an equitable rent abatement, but some lease provisions limit the abatement to those instances in which the tenant is not responsible for the casualty. The way this onerous provision is usually drafted, it appears to be innocuous boilerplate. It is an unfair shifting of the risk of casualty from the landlord to the tenant, particularly in situations where (as in most net leases) the tenant reimburses the landlord for its proportionate share of the landlord's casualty insurance premiums (and sometimes even deductibles). Most landlords will readily delete the provision when challenged, but the tenant's counsel must be alert to request such a deletion.
A related provision that also should be stricken by savvy tenants is the similarly innocuous-appearing provision requiring the tenant to return the leased premises to the landlord at the end of the term “in the same condition as existed at the beginning of the lease term, reasonable wear and tear and casualty damage not caused by the acts or omissions of the tenant excepted.” This provision also unfairly shifts the casualty risk to the tenant and should not be acceptable to a tenant.
William Crowe
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.