Practical Guidance
Time-saving Solutions
Knowledgeable Insights

Negotiating and Drafting Office Leases

By John Busey Wood and Alan M. Di Sciullo
Publisher: ALM
ALM Product :BOOK
$1,009.00

Sold and shipped by ALM

Buy from ALM
In Stock
ISBN: 9781588520616
Publisher: ALM
International Order Inquiry

Product details

"The first treatise that a leasing pro will refer to for explanation of new and difficult issues as well as a refresher on issues that have not recently been encountered." —James S. Saunders, Esq., Senior Managing Director, Newmark Knight Frank

"[An] extraordinary treatise.... The real value of this book is in its practical evaluation of lease provisions, the motivations of the parties, and the reasonable (and unreasonable) positions that parties to a lease often take." —Prof. Daniel Bogart, Chapman University School of Law, and Prof. Celeste ammond, John Marshall School of Law, in Commercial Leasing: A Transactional Primer


Avoid commercial leasing traps that can prove harmful or even fatal to a business! Take the advice of these experienced professionals on how to examine a complex modern leasing document and how to identify the red flags.

Negotiating and Drafting Office Leases offers a practical roadmap through the entire negotiation process. It reviews the clauses of a typical complex modern lease in detail, with explanation and commentary, examining the legal, economic and financial accounting ramifications. Topics include: negotiating strategies and styles; pitfalls created by other agreements entered into by the parties to a lease; repairs and maintenance; assignments and subleases; environmental compliance and due diligence; electricity and utilities costs and issues; the "Porter's Wage"; escalation provision; tenant monitoring of landlord's escalation calculations; guarantors and security deposits; proving the existence of a lease when the original document is lost; quiet enjoyment; expansion space; bankruptcy; work letters; restrictive clauses; renewals and options; financing development through participation leases; synthetic leases; brokerage; lease audits; and many others. Two volumes, forms on CD-ROM.

Featured Authors

Table of Contents

CHAPTER 1

Office Lease Fundamentals



§ 1.01 Evolution of the Modern Office Lease—Emergence of the “Killer Lease”

§ 1.02 What Is a Lease?

§ 1.03 Life of the Lease

§ 1.04 Office Lease Provisions

§ 1.05 Drafting and Analysis Basics

§ 1.06 Summary

CHAPTER 2

Who Is the Landlord and Who Is the Tenant?



§ 2.01 Who Has Authority to Sign the Lease?

§ 2.02 Who Is the Landlord?

§ 2.03 Who Is the Tenant?

§ 2.04 Limitations on Landlord's Authority

§ 2.05 Title Insurance

§ 2.06 Covenant and Representation of Authority of Tenant

§ 2.07 Summary

CHAPTER 3

The Leased Premises



§ 3.01 Space Selection

§ 3.01A Description of Demised Premises

§ 3.02 Measurement Standards

§ 3.03 Space Maintenance and Repair Obligations

§ 3.04 Compliance and Safety

§ 3.05 Summary

CHAPTER 4

The Lease Terms



§ 4.01 Commencement of the Lease Terms

§ 4.02 Abatements and Concessions

§ 4.03 Phased in Possession or Occupancy

§ 4.04 End of the Term

§ 4.05 Condition of the Premises

§ 4.06 Summary

CHAPTER 4A

Security Deposits and Other Forms of Security



§ 4A.01 Introduction

§ 4A.02 Kinds of Security

CHAPTER 5

Preparing the Premises for Occupancy



§ 5.01 Prioritizing Landlord's and Tenant's Work

§ 5.02 Control of the Work Site

§ 5.03 Inspecting and Monitoring Work Quality

§ 5.04 Right to Exclude Landlord

§ 5.05 Summary

CHAPTER 6

Landlord Access



§ 6.01 Building Systems and Compliance

§ 6.02 Landlord Access to Premises

§ 6.03 Emergency vs. Security

§ 6.04 Interference and Business Interruption

§ 6.05 Summary

CHAPTER 7

Area



§ 7.01 Usable Area

§ 7.02 Rentable Area

§ 7.03 Carpetable Area

§ 7.04 Loss Factors

§ 7.05 Measuring Additional or Option Space

§ 7.06 Remeasurement

§ 7.07 Measurement Representations and Proportionate Shares

§ 7.08 Limiting Tenant's Proportionate Share

§ 7.09 Sum of the Demised Premises

§ 7.10 Stand Alone Areas

§ 7.11 Summary

CHAPTER 8

Use



§ 8.01 Types of Uses

§ 8.02 Zoning or Building Use Laws

§ 8.03 No Representations—Permissive Use

§ 8.04 Failure of Essential Purpose

§ 8.05 Summary

CHAPTER 9

Appurtenances



§ 9.01 Common Areas

§ 9.02 Directory and Signs

§ 9.03 Building Systems, Fixtures and Improvements

§ 9.04 Impact on Additional Rentals

§ 9.05 Summary

CHAPTER 10

Repairs and Maintenance



§ 10.01 Obligations of the Parties

§ 10.02 Quality of Service

§ 10.03 Self-Help Remedies

§ 10.04 Repairs Necessitated by Preexisting Conditions

§ 10.05 Summary

CHAPTER 11

Condemnation and Destruction



§ 11.01 Condemnation

§ 11.02 Destruction by Fire or Casualty

§ 11.02A Destruction by Force Majeure

§ 11.03 Mortgagee's Interest in Insurance Proceeds

§ 11.04 Rent Abatements During Condemnation or Destruction

§ 11.05 Length of Restoration Period

§ 11.06 Summary

CHAPTER 12

Alteration



§ 12.01 Initial Alterations

§ 12.02 Subsequent Alterations to the Premises

§ 12.03 Monitoring Alterations and Compliance

§ 12.04 Alterations Clauses

§ 12.03 Summary

CHAPTER 13

Compliance with Laws



§ 13.01 In General

§ 13.02 Compliance Obligations Within the Building

§ 13.03 Compliance Obligations Within the Premises

§ 13.04 Preexisting Noncompliance

§ 13.05 Compliance Arising After Lease Commences

§ 13.06 Major Substantive Compliance Areas

§ 13.07 Summary

CHAPTER 13A

Green Provisions in Leases



§ 13A.01 Green Provisions In General

§ 13A.02 Green Provisions Are Appearing in Many Leases

§ 13A.03 Landlord Green Provisions—Office Leases

§ 13A.04 Tenant Green Provisions—Converse of Landlord Standards

CHAPTER 14

Conditions of Limitation and Defaults



§ 14.01 Operation of Condition of Limitation

§ 14.02 Defaults

§ 14.03 Determination of Damages After Default and Termination

§ 14.04 Summary

CHAPTER 15

Reentry by Landlord



§ 15.01 Emergency Access

§ 15.02 Routine Access

§ 15.03 Reentry as a Remedy

§ 15.04 Consensual Reentry

§ 15.05 Reentry to Security Areas

§ 15.06 Summary

CHAPTER 16

Services



§ 16.01 Levels of Services

§ 16.02 Essential Services

§ 16.03 Differing Levels of Services Among Tenants

§ 16.04 Summary

CHAPTER 16A

Rooftop Rights



§ 16A.01 Introduction and Scope

§ 16A.02 The Regulatory Framework and Landscape

§ 16A.03 Perspective of Commercial Property Owner in Negotiating Terms of a Telecommunications License Agreement

§ 16A.04 Key Terms of a Rooftop License or Telecommunications License Between the Property Owner and the Telecommunications Service Provider

§ 16A.05 Telecommunications Inside and Outside the Premises

§ 16A.06 Rooftop Solar Panel Rights and Obligations

CHAPTER 17

Electricity



§ 17.01 Character of Electrical Services Available

§ 17.02 Cost of Electrical Services

§ 17.03 Landlord's Exculpation

§ 17.04 Summary

CHAPTER 18

Custom of Dealing, Waivers and Modifications



§ 18.01 Practices of the Parties

§ 18.02 Substance of Modifications and the Modification Agreement

§ 18.03 Informal Accommodations and Waivers

§ 18.04 Summary

CHAPTER 19

Rent



§ 19.01 Office Lease Rent

§ 19.02 Base Rent

§ 19.03 Escalations

§ 19.04 Consumer Price Index

§ 19.05 Rent Concessions

§ 19.06 Rent Deferral Arrangements

§ 19.07 Summary

CHAPTER 20

Superior Interests



§ 20.01 Superior Title Interests

§ 20.02 Subordination Agreements

§ 20.02A Collateral Agreement with a Lender

§ 20.02B Loan Underwriting

§ 20.02C Financial Challenges

§ 20.03 Nondisturbance Agreement

§ 20.04 Attornment

§ 20.05 Reasonable Contractual Requirements

§ 20.06 Estoppel Certificates

§ 20.07 The Document Trap—Lease Amendment by Later Documents

§ 20.08 Summary

CHAPTER 21

Transferability of Leasehold Interests



§ 21.01 Transferability

§ 21.02 Right to Acquire or Dispose of Space

§ 21.03 Summary

CHAPTER 22

The Covenant of Quiet Enjoyment



§ 22.01 Quiet Enjoyment

§ 22.02 Construction of the Covenant

§ 22.03 Theories of Liability

§ 22.04 Remedies for Breach of the Covenant of Quiet Enjoyment

§ 22.05 Summary

CHAPTER 23

Restrictive Clauses



§ 23.01 Examples of Restrictive Clauses

§ 23.02 Antitrust Implications

§ 23.03 Tortious Interference

§ 23.04 Summary

CHAPTER 24

Renewals and Options



§ 24.01 Options to Renew or Extend

§ 24.02 Impact on Escalation Rentals

§ 24.03 Holdover and Expansion Options

§ 24.04 Purchase Options

§ 24.04A Assignment and Subletting

§ 24.05 Termination Options and Buyouts

§ 24.06 Summary

CHAPTER 25

Casualty and Insurance



§ 25.01 Allocation of Risks and Responsibilities

§ 25.02 Modern Liability

§ 25.03 Types of Coverage

§ 25.04 Coinsurance

§ 25.05 Subrogation and Waivers of Subrogation

§ 25.06 Indemnification and Exculpatory Clauses

§ 25.07 The “No Fault” Approach

§ 25.08 Summary

CHAPTER 26

Work Letters



§ 26.01 Preparing the Work Letter

§ 26.02 Insulating the Parties from Liability

§ 26.03 Summary

CHAPTER 27

Financing Real Estate Development Through Participation Leases



§ 27.01 Introduction

§ 27.02 How Participation Leases Work

§ 27.03 Structuring an Equity Participation

§ 27.04 Environmental Concerns

§ 27.05 Summary

CHAPTER 27A

Synthetic Lease Transactions and “Off-Balance Sheet” Financing



§ 27A.01 Introduction

§ 27A.02 Accounting Literature

§ 27A.03 Tax Considerations

§ 27A.04 Detailed Description of Synthetic Lease Structure

§ 27A.05 Provisions of a Synthetic Lease

§ 27A.06 Conclusion

CHAPTER 28

Bankruptcy



§ 28.01 How Bankruptcy Works

§ 28.02 Principal Code Sections and Rules Applicable to Commercial Leasing Transactions

§ 28.03 Leases and Contracts: The Effect of Bankruptcy

§ 28.04 Assumption and Its Effects on Landlords and Tenants

§ 28.05 Rejection and Its Effect on Landlords and Tenants

§ 28.06 Sample Bankruptcy Clause

§ 28.07 Appendix: Bankruptcy Definitions and Terms of Art

CHAPTER 28A

Can You Draft a Fair Lease?



§ 28A.01 Introduction

§ 28A.02 Traditional Clauses

§ 28A.03 The Premises

§ 28A.04 Transfer of Interest

§ 28A.05 Remedies

§ 28A.06 Getting the Lease Signed

CHAPTER 28B

Tenant's Checklist of Silent Lease Issues (Second Edition)



§ 28B.01 Introduction

§ 28B.02 Tenant's Checklist of Silent Lease Issues

CHAPTER 28C

Landlord's Checklist of Silent Lease Issues (Second Edition)



§ 28C.01 Introduction

§ 28C.02 What the Checklist Is and Does

§ 28C.03 The Landlord's Checklist

CHAPTER 29

Negotiating the Lease



§ 29.01 Negotiation Basics

§ 29.02 Negotiation Players

§ 29.03 Negotiation Objectives

§ 29.04 Net Present Value Analysis

§ 29.05 Negotiation Process

§ 29.06 A Study of Negotiating Strategies and Styles

§ 29.07 Summary

CHAPTER 29A

Lease Brokerage



§ 29A.01 General Considerations

§ 29A.02 Basic Provisions of the Leasing Brokerage Agreement

§ 29A.03 The Leasing Situation: Creation of the Leasehold

§ 29A.04 The Calculation of Commission

§ 29A.05 Subleasing

§ 29A.06 Other Transactions

§ 29A.07 Lease Provisions Relating to Brokers

§ 29A.08 Form of Brokerage Agreement for Services to a Landlord

§ 29A.09 Brokerage Services on Behalf of a Tenant

§ 29A.10 Co-Brokerage in the Commercial Setting

CHAPTER 29B

The Appraiser’s View of the Lease



§ 29B.01 Introduction

§ 29B.02 Appraisal Basics

§ 29B.03 Lease Summaries Typically Delivered to the Appraiser

§ 29B.04 Development of the Income Approach

§ 29B.05 The Relationship Between the Lease Agreement and the Income Approach Analysis

§ 29B.06 When the Appraiser Receives the Lease Agreement

§ 29B.07 The Appraiser and Confidentiality of Lease Provisions

CHAPTER 30

Subleasing



§ 30.01 What Is a Sublease?

§ 30.02 Limitations

§ 30.03 The Sublease Document

§ 30.04 Landlord’s Consent to the Sublease

§ 30.05 Conclusion

CHAPTER 31

Responding to a Tenant's Assignment or Subletting Request



§ 31.01 Introduction

§ 31.01 A Transfer Clauses

§ 31.02 The Various State Laws and Views

§ 31.03 Jurisdictional Table Covering the State Views on a Tenant’s Right to Assign or Sublease

CHAPTER 32

Preparing for an Effective Subleasing Program While Negotiating the Lease



§ 32.01 Introduction

§ 32.02 Remarketing Issues

§ 32.03 Lease Articles Addressing Assignment, Mortgaging and Subletting Rights

§ 32.04 Conclusion

CHAPTER 33

Leases vs. Licenses



§ 33.01 Introduction—Understanding the Distinctions

§ 33.02 Form: Standard License Agreement

§ 33.03 Form: License for Temporary Use of Premises for Storage

§ 33.04 Form: Limited Purpose License (“Early Access to Space”)

CHAPTER 34

The Killer Lease: What It Is and Why It Exists



§ 34.01 Introduction to the Killer Lease Form

§ 34.02 The “Neutered” Form with Commentary

§ 34.03 Costs to Owners of Killer Leases

Appendices

Glossary of Commercial Leasing Terms with Practice Pointers

Index