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In the Spotlight: Holdover Tenancies

BY David P. Resnick
December 23, 2013

Whether blinded by the glow of new business or fatigued by a lengthy and intense negotiation of terms, landlords entering into commercial leases are not often keen to focus on events that may occur at the end of the term. Pen in hand, landlords are usually anxious to settle in to what promises to be a long-term, mutually beneficial association. However, tenants that fail to vacate their premises at the expiration of the term can cause significant damage to the economic health of a commercial property, and landlords should take measures to protect themselves against such damage and ensure a seamless transition from one tenant to the next.

Why Hold Over?

Virtually every lease contains an obligation of the tenant ' express or implied ' to surrender the leased premises to the landlord upon the expiration or sooner termination of the term. A tenant that fails to do so is referred to as a “holdover tenant.” There are a variety of reasons why a tenant may retain possession following the expiration of the term. The tenant may not have concluded winding down its business, or may simply be abandoning its business in the space. The tenant may have failed to cause a subtenant to vacate the premises, or may have failed to remove certain improvements or trade fixtures. A holdover may even be deemed to occur when the tenant has caused the premises to be contaminated with hazardous substances.

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