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Commercial real estate professionals often draft ground leases where the Ground Lessee/ Sublessor intends to sublease the parcel to a single-use tenant entity (the "Tenant"). (<i>See</i> Weinberg, Scott "Issues to Address When Drafting a Ground Lease for a Single-Use Tenant," <i>Commercial Leasing Law &amp; Strategy</i>, June 2004.)

In an effort to minimize the release of toxic gasses from cables in the event of fire, the 2002 version of the National Electric Code ("NEC"), promulgated by the National Fire Protection Association, sets forth new guidelines requiring that abandoned cables must be removed from buildings unless they are located in metal raceways or tagged "For Future Use." While the NEC is not, in itself, binding law, most jurisdictions in the United States adopt the NEC by reference in their state or local building and fire codes. Thus, noncompliance with the recent NEC guidelines will likely mean that a building is in violation of a building or fire code. If so, the building owner may also be in breach of agreements with tenants and lenders and may be jeopardizing its fire insurance coverage. Even in jurisdictions where the 2002 NEC has not been adopted, it may be argued that the guidelines represent the standard of reasonable care and could result in tort liability for the landlord if toxic gasses from abandoned cables are emitted in a fire. With these potential liabilities in mind, this article discusses: 1) how to address the abandoned wires and cables currently located within the risers, ceilings and other areas of properties, and 2) additional considerations in the placement and removal of telecommunications cables going forward.

When landlords and tenants negotiate a lease, particularly a retail lease, they typically have in mind a long-term relationship. The parties enter the relationship optimistically with the hope that the tenant's business will be successful at the particular location, that the entire project will be a success and that the tenant's operations will enhance the value of the property. Given the long-term nature of most retail leases, it is vital for tenants to think ahead, while at the negotiating stage, and anticipate how their business or the shopping center in which they are located may change (for better or worse) in the future. Tenants should negotiate maximum flexibility in their leases to ensure that their leases do not contain unacceptable obstacles to the tenant's ability to exit from the lease in the event circumstances change and the tenant no longer wants to remain in the lease. This need for flexibility will be tempered by the landlord's desire to retain the original tenant with which it negotiated and is comfortable. This article discusses two types of tenant exit strategies. First, those that are beneficial to the tenant ' while the tenant remains the tenant under the lease ' such as the alteration or elimination of an operating covenant. Second, those that allow the tenant to transfer its interest in the lease whether by merger, stock sale, assignment, sublease or otherwise.

All about the latest rulings.

Recent rulings of importance to your practice.

Bankruptcy lawyers may not get involved in their clients' transactions until it is too late. They may be called in only upon the occurrence of a default, litigation, or the commencement of a bankruptcy case. At that point, they are faced with deals that have been "set in stone" -- drafted and structured by lawyers specializing in the front-end, who may have looked at the transaction from an overly optimistic viewpoint, especially in the case of a long-term deal with another party that presently is in good financial health.

Highlights of the latest franchising cases from around the country.

Highlights of the latest franchising news from around the country.

Lessees increasingly challenge leases in bankruptcy proceedings or disputes with lessors. They assert and litigate the issue of whether a lease constitutes a disguised security arrangement instead of a true lease. This issue arises with respect to leases of equipment as well as software. The consequence of losing true lease status under state law can dramatically affect a lessor's legal rights and remedies and impair a lessor's economics. Despite this increased uncertainty, lessors can effectively structure and defend their lease transactions as true leases when armed with working knowledge of current judicial trends and applicable rules under the Uniform Commercial Code (UCC).

A recent bankruptcy court decision out of the District of Delaware found that a document contained on a Web site was an authenticated notice under UCC 9-404 notwithstanding the lack of affirmative action taken by the assignor or assignee. <i>In re Communications Dynamics, Inc.</i> WL 22345713 (Bankr. D. Del. 2003) is the first decision in which the authentication requirement to an account debtor in Section 9-404(a)(2) of the Uniform Commercial Code (UCC) is interpreted. This holding adds a new element to the UCC's definition of authentication and seems to ignore the plain language of the Code. This decision could have an impact on the leasing industry as the definition of an account debtor under Section 9-102(a)(3) of the UCC includes not only a lessee but will also include a lessor in conjunction with its own accounts payable.