Right of Entry: Landlord Considerations

One of the key requirements of a lease, from a landlord's viewpoint, is that it ensures the landlord has the ability to access a tenant's space. When preparing a lease  for a landlord, consider including the following items to make sure that the landlord is permitted access to all spaces on the premises at all appropriate times.

Provide the Landlord With a Means of Access

Without an effective way of accessing the premises, the landlord may not even be able to enter the space. The first step would be to require that the tenant give the keys to the landlord so that the landlord can unlock all doors in the premises. Then, the landlord should provide that it can use any means that it deems proper to open such doors in the case of emergency, including the use of force. Be careful, however, that any forceful entry is lawful or else a landlord may expose itself to liability merely by exercising its right to access the leased premises.

Describe Who Can Enter, and at What Times

A landlord does not want to fight with a tenant concerning who can enter the premises, and when such access can occur. By simply stating that the landlord and/or its employees, contractors and/or agents have the right to enter the premises at all reasonable times upon reasonable prior notice (which notice can be given orally or by email to a designated individual), these problems can be avoided.

Describe the Circumstances Under Which Entry May Take Place

Describing all the reasons why a landlord can access the premises can be very important. If the landlord limits its right of access, it may provide an excuse for a tenant to prevent a landlord from accessing the space when a landlord has a legitimate need to do so. All of the following should be included in a lease to protect a landlord's interest in accessing the premises in order to:

1. put in place (and have access to) ducts, beams, pipes, joints, foundations, supports and conduits through the Premises (without the same being deemed to be a reduction or reconfiguration of the useable area of the Premises);
2. inspect the premises, to show the premises to others (including to prospective tenants during the last 12 months prior to the expiration of the term or during any period while tenant is in default) or to perform any work the landlord deems necessary to the premises or the building (including the building systems) or for the purpose of complying with all laws,
3. alter, maintain or repair the building (including the building systems) or the land,
4. take all material into the premises that may be required in connection with any of the matters described above,
5. post “for rent” or “for lease signs during the last 12 months prior to the expiration of the term or during any period while tenant is in default,
6. erect scaffolding, protective barricades and other structures around or about the premises,
7. enter into any area expressly reserved to landlord under the lease, and
8. do any act or thing necessary for the safety and preservation of the premises and/or the building.

Limit the Landlord's Obligations

If a tenant has negotiated a provision that a tenant representative must be present prior to the landlord entering into the premises, the landlord should add that the landlord's entry to the premises should not be constrained if the tenant does not make such representative available during the time of such access. The landlord should also have no obligation to hire any contractors on a so-called priority or overtime basis with respect to any access by the landlord, unless the tenant elects to pay the additional cost of performance. Moreover, the landlord should not be required to give advance notice of any entry in the case of an emergency.

Limit the Tenant's Remedies

It is very important to expressly state that any landlord entry, or any work performed  with respect to landlord's access rights, shall not be deemed an actual or constructive eviction of the tenant, will not entitle the tenant to any abatement or reduction of rent, and will not cause the landlord to be liable to the tenant for any inconvenience, disturbance, loss of business, nuisance or other damage arising out of the landlord's entry. Clearly limiting the tenant's right to seek redress in this manner can make it much harder for a tenant to claim it is harmed by a landlord exercising its access rights.

Carve Out Areas Reserved For the Landlord's Exclusive Use

Certain areas in a building are not intended to be part of a “premises” leased to a tenant. Therefore, a landlord should provide in its lease that  the premises leased to a tenant should not include at least the following areas:

1. the exterior walls of the building,
2. core corridor walls,
3. exterior doors and entrances (other than entrances servicing only the premises leased to the tenant),
4. balconies, terraces and vaults,
5. areas above any hung ceiling, and
6. building systems and all other portions of the building that are not part of the premises.

The landlord should reserve all rights to the above parts of the building, and the lease terms should expressly provide that landlord shall have access to such areas through the premises.

Conclusion

If a landlord reviews the above items and includes them in its “checklist” of clauses to include in the access provisions that it inserts into a lease, a landlord will be well on its way to having an access clause that fully protects its interests and prevents any unintended surprises after the lease is signed.