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Problematic Lease Provisions: The Top Three Offenders

By Jill R. Johnson
February 28, 2015

Both landlords and tenants of commercial property must be careful in preparing and signing leases. Beyond the financial considerations of the agreement, both parties must consider how to protect themselves before, during and after the term of the lease. Although every commercial lease is unique, there are three provisions that often create the most problems for landlords and tenants: self-help repossession provisions, restrictive covenants, and repair provisions.

Self-Help Repossession: Friend or Foe?

Determining whether self-help repossession is a viable option depends on whom you ask. Self-help is the process of evicting a commercial tenant without resort to the judicial dispossessory procedure (usually a state statutory procedure). It is typically accomplished by a landlord locking the doors to the tenant's space and retaking possession. Many landlords are hesitant to exercise this remedy (despite the fact that a provision allowing it is, in some form or another, in most standard commercial leases). However, the remedy of self-help has been specifically authorized by many states, provided that the lease contains language permitting the landlord to exercise it.

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