In the Spotlight: Don't Leave 'Air Quality' Out of the Lease

A lease may have boilerplate provisions requiring the landlord to comply with applicable laws, but such provisions do not necessarily require the landlord to provide its tenant with odor-free space. The savvy tenant will require the landlord to provide, at a minimum, that the air quality in the tenant's space will be in accordance with standards for first-class office buildings and further require the landlord to take corrective actions at its expense in the event that the air quality does not match such standards. It is particularly important for lower-floor tenants of urban properties to insert provisions with respect to fumes, especially cooking odors. In order to ensure that the landlord does not correct air quality problems at the tenant's expense, the expense pass-through provisions of the lease should specifically exclude capital expenditures. This exclusion will provide the landlord with an incentive to hold other tenants or the owners of adjoining properties accountable if their activities are the cause of the aggrieved tenant's air quality problems.

Air quality standards are frequently not satisfactorily addressed in leases, if they are addressed at all. Most sophisticated office leases will require a landlord to provide certain temperature and humidity levels during specified times. A typical clause provides that the landlord will provide HVAC service from 8:00 a.m. to 6:00 p.m., Monday through Friday, and perhaps from 8:00 a.m. to 12:00 p.m. on Saturdays. Sometimes the actual dry and wet bulb temperature and humidity levels will be specified, and in other instances the lease will simply provide that temperature and humidity levels will be in accordance with first-class standards. These provisions, however, do not address air quality, including cooking odors or exhaust fumes which may infiltrate the building's air system and end up in a tenant's space.

A lease may have boilerplate provisions requiring the landlord to comply with applicable laws, but such provisions do not necessarily require the landlord to provide its tenant with odor-free space. The savvy tenant will require the landlord to provide, at a minimum, that the air quality in the tenant's space will be in accordance with standards for first-class office buildings and further require the landlord to take corrective actions at its expense in the event that the air quality does not match such standards. It is particularly important for lower-floor tenants of urban properties to insert provisions with respect to fumes, especially cooking odors. In order to ensure that the landlord does not correct air quality problems at the tenant's expense, the expense pass-through provisions of the lease should specifically exclude capital expenditures. This exclusion will provide the landlord with an incentive to hold other tenants or the owners of adjoining properties accountable if their activities are the cause of the aggrieved tenant's air quality problems.