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Rethinking Boilerplate
As the United States economy begins to create renewed demand for office and retail space, landlords and tenants have the opportunity to take the lessons learned from the recent downturn into their next lease negotiation. While there are a number of hotly contested business and legal points in any negotiation, it is easy to forget the boilerplate provisions buried at the end of a lease. These boilerplate provisions are often unquestioned simply because they are standard; however, many of these provisions deserve a fresh look before being incorporated into new leases. There is a clause that has the ability to allocate risk grossly to one party or the other. If left unmodified, this clause ' the landlord liability clause ' can also leave a tenant without a meaningful remedy for the rights that it has so carefully negotiated. This article explores the limitation of the landlord liability clause.
Limitation on Landlord Liability Clauses
Most, if not all, leases will contain a standard provision limiting a landlord's liability to a tenant to the landlord's interest in the underlying property. These provisions deserve additional scrutiny by both landlords and tenants as they enter into new leases. Given the reduction of value that has occurred over the past several years across commercial properties of every type, tenants have to be concerned that this provision actually negates any meaningful remedy against a landlord when a landlord is highly leveraged. Landlords, on the other hand, may want to review this clause in light of the heightened lending standards currently prevailing in commercial real estate. Where this clause used to provide landlords a great deal of cover, this provision now may actually expose a landlord to substantial liability, e.g., if the landlord recently refinanced property or acquired property with the help of new financing, the lender likely required more equity. In addition, landlords that have the luxury of owning their properties outright need to pay special attention to these clauses as the standard limitation of landlord liability provision provides those landlords with no substantive protection.
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