Monday, December 18, 2006

Silent Lease Issues and Holiday Greeting from Shenwick & Associates

Happy holidays to all our clients, friends and other loved ones! As we wrap up 2006, two changes of note we wanted to alert you to:

1. We now have a Spanish web site at for personal bankruptcy.

2. We'll be relocating in early 2007. We'll let you know as soon as we have all the details.

This month, we'll continue with our coverage of "silent" lease issues that may be important to you as a tenant, but that standard lease forms from landlord's don't deal with.

I. Maintenance and Cleaning

a. Structural repairs-Require the landlord to maintain and repair the structural elements of the building (including the roof and foundation) and maintain and keep in good repair parking, common areas, as well as sidewalks. "Structural elements" should be a defined term in the lease, and defined as broadly as possible to cover everything except improvements that are specific to a particular tenant.

b. Building and Systems Maintenance-The landlord should maintain electrical, sewage, plumbing, HVAC and other building systems, at least to the point of entry. Inspect building systems, and consider whether to require the landlord to maintain service contracts.

c. Maintenance standards-The landlord should maintain the building (including empty retail spaces and all common areas) in a manner appropriate to the space. Services should include security, repainting and re-carpeting.

d. Cleaning standards-Specify standards for the landlord's services, both within the premises and in common areas. Limit the scope of, and try to define the price of "extras." If the standards say the landlord does not to clean any "computer areas," this will exclude a lot of space for modern offices.

e. Cleaning Hours-Specify the earliest time or latest time that cleaning may commence.

f. Garbage Removal-Specify locations, access, timing and other arrangements.

II. Quiet Enjoyment

a. Watch for "quiet enjoyment" being conditioned on no default. Instead, make it conditional upon the landlord not having terminated the lease.

b. If a sidewalk shed, fence or scaffolding for any construction project impairs access or visibility, you may want the right to reduce the rent.
For any such project: (1) try to set limits on the scope and duration of the obstruction; (2) seek the right to install advertising signs at the landlord's expense; (3) prohibit other advertising signs; and (4) require the landlord to promptly remove all unauthorized postings or graffiti.

c. Try to limit where dumpsters may be installed.

d. Damages for a breach of the covenant of quiet enjoyment is difficult to prove consider providing a liquidated damages clause instead.

Jim Shenwick
Shenwick & Associates