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Subordination, Non-Disturbance and Attornment Agreements

By Amy M. Mitchell and Lara Kirkham
September 02, 2014

Tenants should get a Subordination Non-Disturbance and Attornment Agreement (SNDA) from the landlord's lender to make sure that the lender agrees not to disturb the tenant's possession of the premises if there is a foreclosure. (For more on SNDAs, see “In the Spotlight,” infra.) Too often, the SNDA is an after-thought that is negotiated after the parties have grown weary from the lease negotiations. A tenant's goal in negotiating a SNDA is to protect the rights that it has negotiated with its landlord if the landlord's lender or any third-party purchaser acquires the property.

The vast majority of lenders provide their own form of SNDAs and, based on our recent experience, those forms are growing increasingly less tenant-friendly. As an attorney for a tenant, you may not have a lot of leverage to negotiate terms, and will need to focus on the most important provisions affecting your client's interest. This article discusses the top 10 items tenants should try to get in a SNDA.

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