Proportionate Share Adjustments: Tenants Beware of Costly Calculations
Most retail and shopping center leases contain a provision — which appears fair and reasonable on its face — to the effect that the tenant's proportionate share of the center or retail area is fixed at a certain percentage, <i>eg,</i> 35%. This percentage is then utilized by the landlord for the purpose of calculating the tenant's contribution to real estate taxes, common area maintenance expenses, and insurance premiums incurred by the landlord in operating the center or building. However, it's not always simple to calculate that share. For example, assume a theater tenant negotiated a lease in a center under construction, which provided that its proportionate share of the center was 35.2%, based upon the detailed plans and specifications for the center then in existence. Upon completion of the center, the tenant was presented with a statement by the landlord advising that the theater occupied 50%. In addition, when the theater tenant was negotiating the lease, it was advised by the landlord that its share of the common area maintenance charges was estimated at approximately $250,000. The bill the tenant received for its share of common area maintenance charges for the first year of operations was approximately $3 million. How could this happen? And how can you prevent this from happening? Read on.
In the Spotlight: Negotiating a Meaningful Right of First Offer, First Refusal
Rights of first offer and first refusal are frequently sought by tenants, especially for space contiguous to the original leased premises, in order to give tenants a combination of flexibility and leverage when dealing with their potential expansion requirements. Landlords are understandably reluctant to grant such rights, as they may interfere with the landlord's ability to accommodate the future needs of existing or prospective tenants.
Modifications to the Shopping Center: A Tenant's Perspective
In most shopping center leases across the country, there is a provision that relates to the landlord's right to modify, change, add to, subtract from, and/or alter the size, dimensions, character, and construction of the shopping center. Very often, these provisions further grant the landlord the right to change the entrances, the number of parking spaces, the dimensions of hallways and corridors, the number of floors, the placement of kiosks, carts and retail merchandising units in the common areas, the location and arrangement of the common areas, and the merchandising mix of tenants. Generally, this type of a provision is viewed as boilerplate within the lease document and does not receive a great deal of negotiation from tenants.
Mistake of Judgment: Calling Out for Clarity
In medical malpractice cases, it is a matter of hornbook law that health care providers bear no liability for poor outcomes resulting from the exercise of professional judgment, as long as they adhere to the relevant standard of care. In an attempt to facilitate jurors' understanding of this concept, courts across the country have given "mistake" or "error-of-judgment" charges, which typically instruct the jury that physicians are entitled to exercise their professional judgment in choosing either of two reasonable options.
AHLA Seeks Clarification on Malpractice Insurance
<b>Part One of a two-part article</b>. Proper malpractice coverage is essential to any physician's practice. When that coverage is not readily available or premiums skyrocket, that essential can seem like a luxury. Physicians facing other economic pressures in their practice not infrequently opt to reduce their insurance limits, increase their deductible, drop their coverage altogether, retire or leave the area, or discontinue what they view as high-risk portions of their practice (eg, serving on ER call rosters or accepting Medicaid or indigent patients). As a result, physicians' personal assets (and careers) are more at risk, hospitals face more liability exposure as the "deep pocket," and patients face significantly reduced access to care.
Verdicts
Recent rulings of importance to you and your practice.
Revisiting Pretrial Protocol and Procedure
<b>Part Two of a two-part article.</b> In last month's issue, we discussed the defense problem of increasingly high med-mal verdicts. This month, we explore strategies that defendants anticipating their personal day in court should consider if they hope to buck the trend toward high jury verdicts in medical malpractice actions.
How Will It Play in New York?
Judge Marilyn O'Connor of Family Court, Monroe County, issued a controversial order in March barring a frequently homeless couple from having any more children until they can show that they will be able to care for the four children they already have.
