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Commercial landlords should consider the steps they can take when drafting and negotiating their commercial leases to minimize the adverse impact of the claim cap in the event of a tenant bankruptcy and ensuing lease rejection.
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Many landlords are loyal to their tenants and only increase rates at the end of the current lease. Others take a more aggressive approach. They actively find creative ways using lease restrictions to evict tenants. While this isn't necessarily fair, it is legal.
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Many in commercial real estate, especially relatively new to the industry and without extensive previous experience, are making use of leverage in ways that are problematic under the higher interest rates the Fed has instigated to head off inflation.
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The Appellate Division Second Department recently issued a landmark ruling in Sapp et al v. Clark Wilson et al concerning two hot button issues; namely illusory subtenancies and status of transitional occupants.
Columns & Departments
Local Law Prohibiting Drive-Through Windows Requires Full Environmental Assessment Form Area Variance Denial Upheld Redevelopment Project Did Not Transfer Inalienable Parkland Town Board Took Requisite Hard Look At Environmental Impact of Mixed-Use Development Court Rejects Claim of Conspiracy to Violate Vested Rights
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In Tri-Outdoor v. Keyser, the Pennsylvania Superior Court recently addressed whether a tenant could specifically enforce a right of first refusal provision contained in a lease agreement where the landlord sold the leased premises to a third-party purchaser.
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Buyer's Anticipatory Repudiation Results In Forfeiture of Down Payment Constructive Trust Claim Supports Notice of Pendency
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Gravitating to a fund structure is also no easy task and as with any investment program, the first one is always the most difficult. However, the benefits far outweigh the costs for any experienced real estate investment firm. The primary concern with a fund structure is who will sell the equity in the fund.
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Double Rent Holdover Provision Enforceable; Late Fee Unenforceable As a Penalty Extrinisic Evidence Inadmissible to Vary Terms of Lease Agreement Court Upholds Holdover and Prejudgment Interest Provisions Unsigned Lease Agreement Not Binding
Features
Despite some new variants and a possible resurgence in the fall, the pandemic closures seem to be finally coming to an end. And with it, so too have most of the COVID-19 defenses in court cases involving commercial leases. However, all may not be foreclosed for a commercial tenant, particularly where a tenant is able to point to a specific provision of its lease that could excuse its obligation to pay rent during the closure of its business.