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Landlords' Liens and Waivers

By John G. Kelly
November 27, 2012

Commercial real estate landlords and the lenders for their tenants have competing interests with respect to the tenant's personal property located at the demised premises. The landlord is looking to secure the tenant's rental obligations by taking a lien against the tenant's fixtures, inventory, and equipment located in the space, which may be particularly valuable in the case of retail and restaurant tenants. The tenant's lender, which is providing premises fit-out and/or working capital financing, desires a security interest in the same property. The landlord's lien may be created either by contract under the terms of the lease or through operation of law, and allows the landlord to levy the property located at the demised premises of a tenant who has failed to pay rent.

While the tenant would rather not allow either party to maintain a lien against its personal property, the tenant's action in this regard is often dictated by the requirements of its lender. While national retailers with strong credit typically have the leverage to insist on the waiver or subordination of their landlord's lien rights, most smaller or regional tenants must navigate between their landlord's and lender's competing interests. This article discusses the varied interests of the landlord and the tenant's lender in the tenant's personal property, and offers suggested compromise solutions.

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