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