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LEASE AGREEMENT REFERENCE GUIDE 1640: STRATEGIES TO MAKE THE MISCELLANEOUS CLAUSE REALLY MATTER $24.95


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Lease Strategies
1640

Product Overview

This LARG contains the following reference materials:

Practicing the Fine Art of Lease Camouflage, and the Lease Clause Critique: A Sampler of "Miscellaneous" Clauses.

Number of Single Spaced Pages: 12

 

Excerpt

Strategies to Make the Miscellaneous Clause Really Matter

 

This LARG looks at the ignoble practice of hiding controversial lease provisions where they might not be spotted by the other side. Favorite hiding places include the “definitions” section, the “miscellaneous” section, the work letter, the rules and regulations, and even the plot plan. The first article looks at the kind of clause sometimes “hidden” in the lease‘s shadows. The Lease Clause Critique features a pro-landlord “miscellaneous” section whose contents are anything but routine.

Practicing the Fine Art of Lease Clause Camouflage

Although most commercial landlords and tenants won’t admit it, they can be very cagey when drafting their form leases. The drafting party not only has complete control over the contentof its standard form lease—it also has the right to decide where those clauses appear in the documentation. For example, if a landlord wants to include a clause likely to be hotly contested by tenants during negotiations, it has two choices. It can insert the offensive clause right in the body of the lease as a separate section, knowing that every tenant reviewing the form will bump right into the objectionable provision, and start screaming just as soon as it does.

Just Bury It

Or, the landlord can try Plan B—use drafting camouflage and stick the clause somewhere in the lease where the tenant just might miss it. Like in the work letter. Or in the rules and regulations. Or in a lengthy series of definitions pertaining to defined terms used in the lease. Is it the landlord’s fault that the tenant might not read those parts of the lease as carefully as the rent clause? Probably not, reasons the landlord. After all, everything is right there (somewhere) in the paperwork in black and white, right?

Interred in Miscellany

The landlord intent on subtle subterfuge can also plug inflammable clauses into the “Miscellaneous” section of the lease. This lowly section epitomizes innocuous boilerplate. Usually comprised of a hodgepodge of minor drafting afterthoughts not important enough to merit a clause by themselves, the section often gets scant attention from the negotiating parties. And that lack of interest, particularly on a tenant’s part, can sometimes invite a landlord to load the section up with aggressive provisions that are anything but “miscellaneous“ to the rights of the parties.

For example, a sophisticated tenant would be hard pressed to consider the following sort of clauses as harmless boilerplate:

  • A clause that excuses the landlord’s late performance (i.e., default) if caused by anything beyond the landlord’s “reasonable control.”
  • A clause requiring the tenant to reimburse the landlord for the unlimited fees and costs of lawyers, engineers, accountants and architects if the landlord uses such consultants in the course of considering whether to consent to a request by the tenant under the lease (for example, for a consent to an assignment).
  • A clause requiring the tenant to furnish current financial statements to the landlord within fifteen days of the landlord’s request anytime during the term of the lease.
  • A clause which prevents the tenant from suing the landlord for damages if the landlord unreasonably withholds its consent under the lease (e.g., for a tenant assignment).
  • A landlord right to relocate the tenant at any time during the term that applies to all tenants, not just small ones.

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