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One of the key requirements of a lease, from a landlord's viewpoint, is that it ensures the landlord has the ability to access a tenant's space. When preparing a lease for a landlord, consider including the following items to make sure that the landlord is permitted access to all spaces on the premises at all appropriate times.
Without an effective way of accessing the premises, the landlord may not even be able to enter the space. The first step would be to require that the tenant give the keys to the landlord so that the landlord can unlock all doors in the premises. Then, the landlord should provide that it can use any means that it deems proper to open such doors in the case of emergency, including the use of force. Be careful, however, that any forceful entry is lawful or else a landlord may expose itself to liability merely by exercising its right to access the leased premises.
A landlord does not want to fight with a tenant concerning who can enter the premises, and when such access can occur. By simply stating that the landlord and/or its employees, contractors and/or agents have the right to enter the premises at all reasonable times upon reasonable prior notice (which notice can be given orally or by email to a designated individual), these problems can be avoided.
Describing all the reasons why a landlord can access the premises can be very important. If the landlord limits its right of access, it may provide an excuse for a tenant to prevent a landlord from accessing the space when a landlord has a legitimate need to do so. All of the following should be included in a lease to protect a landlord's interest in accessing the premises in order to:
If a tenant has negotiated a provision that a tenant representative must be present prior to the landlord entering into the premises, the landlord should add that the landlord's entry to the premises should not be constrained if the tenant does not make such representative available during the time of such access. The landlord should also have no obligation to hire any contractors on a so-called priority or overtime basis with respect to any access by the landlord, unless the tenant elects to pay the additional cost of performance. Moreover, the landlord should not be required to give advance notice of any entry in the case of an emergency.
It is very important to expressly state that any landlord entry, or any work performed with respect to landlord's access rights, shall not be deemed an actual or constructive eviction of the tenant, will not entitle the tenant to any abatement or reduction of rent, and will not cause the landlord to be liable to the tenant for any inconvenience, disturbance, loss of business, nuisance or other damage arising out of the landlord's entry. Clearly limiting the tenant's right to seek redress in this manner can make it much harder for a tenant to claim it is harmed by a landlord exercising its access rights.
Certain areas in a building are not intended to be part of a “premises” leased to a tenant. Therefore, a landlord should provide in its lease that the premises leased to a tenant should not include at least the following areas:
The landlord should reserve all rights to the above parts of the building, and the lease terms should expressly provide that landlord shall have access to such areas through the premises.
If a landlord reviews the above items and includes them in its “checklist” of clauses to include in the access provisions that it inserts into a lease, a landlord will be well on its way to having an access clause that fully protects its interests and prevents any unintended surprises after the lease is signed.
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