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A very important lease provision, particularly from the tenant's perspective, is an effective subrogation waiver. The subrogation waiver essentially provides that in the event of a casualty that is caused by the negligence of one party to a lease, the negligent party is nonetheless not liable for the resulting damage to the extent that the damage is either covered by applicable insurance proceeds or to the extent it would have been covered by insurance proceeds had the other party to the lease maintained the insurance as required under the lease. Subrogation waivers provide, in effect, that both parties to the lease benefit from the casualty insurance maintained by either party. This concept is especially fair to the tenant in net lease situations where the tenant pays its pro rata share of the landlord's casualty insurance. Landlords also benefit from a mutual subrogation waiver to the extent that the tenant's leasehold improvements, fixtures, and personal property are damaged or destroyed due to the landlord's negligence.

Have you ever sent a fax containing a lease agreement, listing agreement, property informational brochure or estoppel certificate? What about a fax with a purchase order, invoice or a request for a proposal from a vendor of property-related services or goods? In the leasing world, who hasn't? At the same time, have you ever considered obtaining prior written consent from the recipient to authorize your transmission of that fax? In many, if not all, cases, the answer is likely to be "who has?" In the not-too-distant future, that answer probably will need to be changed. Read on to find out why — and whether you will be among the crowd that must obtain that prior authorization before turning on your fax machine.

Recent rulings of importance to your practice.

Recent rulings of interest to your practice.

More than 35 states have enacted laws regulating spam in some form or fashion. Legitimate marketers and businesses adapted to these various state laws, gravitating toward a fairly uniform best practices model, which stopped short of the sort of true "opt-in only" model strongly preferred by consumer and anti-spam groups. Mailers could be fairly confident that they would avoid liability under state spam laws and not overly alienate Internet service providers (ISPs) or their own customers by simply including valid contact information, honoring "opt-out" requests, providing accurate headers and routing information, using nondeceptive subject lines and (in a few states) labeling the messages as advertisements. This widely followed compliance strategy became unworkable in September 2003, however, when California instead enacted a true "opt-in" approach to commercial e-mail marketing. Marketers were faced with a January 2004 compliance deadline and sweeping new prohibitions on marketing to or from any California e-mail address unless the sender had the recipient's "direct consent" or had a "pre-existing business relationship" with the recipient (and the recipient had not "opted out" of such mailings). In response, legitimate marketers aggressively lobbied Congress to accelerate final passage of federal legislation to pre-empt at least the more disruptive aspects of California's new law prior to its effective date. Congress responded to the call, and the CAN SPAM Act of 2003 was signed into law by President George W. Bush on Dec. 16, 2003.

Like many financial products, equipment leases can be bought and sold. The lease assignment market has become increasingly active and complex in recent years, despite the economic downturn of the early 21st century. This article highlights the type of documentation that should generally be required when a broker or other originator of leases (the "Originator") assigns leases to a funding bank (the "Funder").

Recent decisions of importance to you and your practice.

A comprehensive list of key cases discussed in this issue.

Not surprisingly, most of the time we spend negotiating leases is devoted to discussions of significant, fairly predictable aspects of the landlord/tenant relationship: the fundamental business terms of the deal, details of business terms that were not fully settled before the lawyers became involved, and a variety of legal issues from assignment to zoning. As we all know, these substantive negotiations can sometimes consume more billable hours than our clients would prefer and (if we are fortunate) there are always other deals waiting in line demanding our attention. If we focus only on the major points, though, we may miss some meaningful issues and potential traps, for both the principals and their counsel, lurking in the mundane, "boilerplate" provisions of our leases. This article will explore several such provisions, 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 provide a checklist of easily overlooked items to be examined.

Highlights of the latest commercial leasing cases from around the country.