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Ground Lease Tug of War
Consider a hypothetical in which the “Landlord” leases certain land to the “Tenant” pursuant to a long-term ground lease. Landlord initially delivered the land to Tenant without any improvements, and Tenant constructed a warehouse/office building and surface parking lot on the land. For 15 years, Tenant operated its business on such parcel, but business has waned in the last few years.
“Developer” approaches Tenant, offering to assume the ground lease, pay Tenant a premium for the lease, remove the existing building and construct a parking structure for Developer's project on an adjacent parcel. Prior to Developer's commencement of demolition, Landlord notifies Developer that the building constructed by Tenant cannot be removed, at least not without Landlord's consent and payment to Landlord of the value of such building. The ground lease requires Tenant to construct the initial building at Tenant's cost, pay all real estate taxes, and insure and maintain the building.
The lease further allows Tenant to enlarge or modify the building, but there is no specific right to demolish the building and no requirement to remove improvements on the expiration of the lease term. The determination of whether Tenant or Developer may remove the existing building and either construct a new building or different improvements or leave it vacant may depend on where the property is located.
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