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In the Spotlight: A Tenant's Right to Offset
A commercial tenant's right to remedy a default by the landlord by performing the required work itself, and then offsetting the costs of such work against future rental payments, is likely the most immediate and effective remedy a tenant could ever have. But a tenant needs to review the lease agreement closely and know the local applicable law before ever deciding to take such an aggressive measure. Most leases (and the laws of most states, if the lease is silent) essentially prohibit the right of offset, so the sophisticated and creditworthy tenant will need to negotiate for such a right before the lease is finalized.
Defaults and Remedies
Landlords have many obligations under commercial leases, which can be the cause of a landlord default if such obligations are not met. For example, the landlord could fail to maintain the parking lot or common areas properly in a retail shopping center, or the landlord could fail to maintain the elevator or HVAC system properly in a high-rise office building. Depending on the terms and conditions of the lease agreement and the laws of the local jurisdiction, the commercial tenant can avail itself of various remedies under both equity and law. Equitable remedies include the following: 1) rescission, if the landlord breaches a material term of the lease before the term of the lease has commenced; 2) constructive eviction, if a landlord either takes an action or fails to perform something that it has a legal duty to provide, which action or failure to act results in the premises being essentially uninhabitable; 3) a petition for declaratory judgment; 4) specific performance, in cases of unique fact patterns such as when a landlord breaches its contract to lease; or 5) injunctive relief, in emergency level situations when the tenant is facing immediate and irreparable harm. Alternatively, the tenant could respond to a defaulting landlord by suing for monetary damages.
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