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Don't Forget to Read Those Condominium Documents
A young attorney once asked me a question about a lease she was reviewing where the building was condominiumized. Before I responded, I had one question for her: "Did you review the condominium documents?" She looked at me with a blank look. That was not a good answer. I explained that the condominium "declaration" and the by-laws, floor plans and rules and regulations attached to it (all referred to, many times, in the lease as the "condominium documents") should be a starting point for any lease review where a condominium "unit" or "units" comprise all, or part of the premises leased by a tenant. To obtain a copy of the condominium documents an attorney can request them from the landlord who owns the unit or, as is the case in New York City, the documents may be found online if you know the block and lot number of the building. Reviewing the condominium documents may provide information about the actual unit you are leasing that you cannot glean from a review of only the lease itself. That means that, no matter how carefully you reviewed the lease, if you don't read the condominium documents you could be missing critical information relating to the unit and the building that is available only by reviewing the condominium documents.
Condo Units
Every condominium consists of a certain number of "units." It is important to review the condominium declaration to see that the unit that is described in the lease is the same as the condo unit mentioned in the declaration. For example, if you are leasing a commercial unit within the building and the declaration states that the space you are leasing consists of units C1 and C2, make sure that these unit numbers are specifically described in the lease as the space you are leasing. Besides giving an accurate description of the space you are leasing; the unit numbers are also important to mention in any lease where the tenant is responsible for all or a portion of the taxes that are due for the premises as each unit is separately taxed by the taxing authorities. A description of the unit in the declaration may also provide the square footage contained within the unit and, in the case of a garage unit, may also mention the number of parking spaces available within the unit. If a garage lease requires the tenant/garage operator to provide parking for no less than 50 spaces but the unit only allows for 48 spaces this could be a problem. Similarly, if the declaration provides that there is approximately 21,250 square feet of retail space but the lease states that the Premises has a smaller footprint, again, that is something that may require further review. The declaration should also mention the uses that are permitted within the unit, and, just as importantly, the uses that are prohibited. Carefully review the declaration to check that the use you intend to lease the space for matches what is contained in the declaration and that any use that is "permitted" under the lease is not prohibited in the condominium documents. You could be surprised as to what you find!
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