The Leasing Hotline
November 28, 2006
Highlights of the latest commercial leasing cases from around the country.
Understanding and Utilizing Percentage Rent Provisions
November 28, 2006
As retailers like to say, 'The three most important factors in retailing are location, location, location.' The real value of a retail lease, however, resides in the volume of sales produced at the location; therefore, the provider of the location — namely, the landlord — is a key player in the retailer's success. That is why percentage rent has developed in retail leases as a way by which the landlord that provides a successful location might share to some degree in that success.
In the Spotlight: Silica Liability and the Premises Owner
November 28, 2006
Part One of this series explored the reasons why landlords should be concerned about silicosis litigation. This conclusion suggests some measures that landlords can take to avoid ' or at least reduce ' such litigation.
Considerations in Drafting and Negotiating Early Lease Terminations
November 28, 2006
The first impression one may have when preparing to draft an early termination agreement is that such a document should be a simple matter. It is true that simplicity and brevity in drafting are, in most circumstances, admirable qualities, and it is equally true that we frequently draft and negotiate documents that are much more complex than most lease termination agreements. Nevertheless, as with any effort to document a transaction, care must be taken in the preparation and negotiation of such an agreement to avoid overlooking potential risks and to protect the client's interests. This article explores some considerations in documenting the early termination of a lease, though not necessarily in order of importance. Although some specific suggestions are made and some sample provisions are included, the primary intent of this discussion is to alert the leasing practitioner to various issues and pitfalls that may be encountered.
Bankruptcy Code Amendments Alter Franchise Case Strategies
November 28, 2006
The substantial amendments made by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) to the Bankruptcy Code have had a significant impact on the dynamics of franchisee bankruptcies. The BAPCPA was generally intended to accelerate Chapter 11 'reorganizations' and provide relief to certain constituencies in the bankruptcy process (eg, landlords). This article focuses on the nuances of the BAPCPA's impact in franchisee bankruptcy cases.
U.D. Registry, Inc. Topples California Security Freeze Act
November 17, 2006
In a decision that may have repercussions throughout the United States, a California Court of Appeal has ruled that California's Security Freeze Act violates the First Amendment because it precludes the reporting of information contained in public records. The challenge to the Freeze Act was brought by U.D. Registry, Inc. ('UDR'), a company that maintains information on tens of millions of people in California and elsewhere, providing landlords and property managers with reports about prospective tenants. UDR had challenged California's freeze law, Cal. Civil Code §1785.11.2, as unconstitutional. The appellate court, however, also reversed an injunction that had completely barred the state from enforcing the law, and directed a new injunction be issued barring enforcement against UDR only.
The Leasing Hotline
October 30, 2006
Highlights of the latest commercial leasing cases from around the country.
May We Waive Goodbye to Juries?
October 30, 2006
Like most rights, the right to a jury trial can be waived. In general, commercial landlords disfavor jury trials, especially when the opposing party is an individual, finding the outcomes of such trials to be either too uncertain, or if consistent, consistently against the landlord's interest. The general perception is that juries tend to favor individuals in disputes against institutional parties as a way to rectify a perceived injustice that corporations and other institutions allegedly inflict on the public. Jury trials are also more costly than non-jury trials, and parties may waive their right to a jury trial to avoid the added expense.
Negotiating Broker Agreements
October 30, 2006
Your company (the 'Company') has decided it needs to find additional space for lease and/or to dispose of excess space and, after extensive due diligence, the Company has identified the ideal real estate broker (the 'Broker') to work with in the transaction(s). You and your new Broker have shaken hands on the basic terms of engagement (such as term and commission rates), and you have received and are now asked to review your Broker's standard form of retention agreement (the 'Agreement'). The Agreement, as is customary with most broker's standard forms of retention agreements, is only a couple of pages long. Should the Company sign it? After you have considered the issues described in this article and negotiated to protect the Company's interests to fit your particular circumstances, the answer is 'yes.' This article discusses some of the common issues that you may want to explore before the Company signs and delivers the Broker's form of retention agreement.
