Who Wrote Your Lease, Loan Agreement, Or Other Document?

Print

“A committee is a cul-de-sac into which ideas are lured and then quietly strangled” — Sir Barnett Cocks. Much the same can be said about the documents we read and, sadly, write. Sir Cocks didn’t necessarily mean only that ideas were strangled to death. We want to think he also was thinking about damaged survivors, the ones that survived, but with a life-long injury.

Think about the process we follow to create a written agreement, whether that is a lease, an easement, a loan agreement or any of the others we, Ruminators, can list. In most cases, we start with a form written by predecessors. The words in those forms aren’t “ours.” The “voice” isn’t “ours.” In some cases, we cut and paste from a selection of related forms, each with its own voice. Then, we modify this “base” document, adapting it to the deal in front of us. In simple cases, we fill in some blanks, delete some provisions, and add a few. In others, we make significant changes, some to the very core or philosophy of what the form’s original authors had in mind. Our additions might have been written solely from our own thoughts; they are never tabula rasa (def.: an absence of preconceived ideas or predetermined goals); they never are. In fact, our additions often are snippets from something else we or others have written. [Note that we’ve written “authors,” not just author. That’s because our selected foundational document or document very likely was put together in the same way we are describing.] [Read more…]

Print

Insurance Proceeds: Use Them Or Lose Them

Print

When it comes to some property insurance proceeds, the tag line is: “Use it or lose it.” Most agreements such as leases and mortgages, even poorly written ones, call for one party or the other (or both) to carry property insurance for “replacement cost.” [By the way, “full replacement cost” isn’t one barleycorn larger than plain, old “replacement cost.” A full quart of milk takes up no more space than a lowly quart of milk. And, it isn’t “replacement value,” it is “replacement cost.”] But, “replacement cost” doesn’t mean that the insurer goes out and writes a check for what is determined to be the damaged property’s replacement cost, even if the property is totally destroyed. The insured only gets paid for the cost of what is actually repaired. Note that we’ve just written “repaired,” not “replaced,” even though the coverage is called “replacement” cost. That’s because “replacement cost” is a limit, not the amount that is going to be written on the check. [Read more…]

Print

Landlords Can Be Liable For A Tenant’s Sale Of Counterfeit Goods

Print

Should a landlord be concerned about trademark or copyright law? Perhaps, not overly concerned (considering how many other challenges they face), but the answer is: “Yes.” Simply stated, a landlord can be liable to legitimate product suppliers if a tenant is selling counterfeit goods. Is it as simple as that? Well, no – but that’s the law, and there are court decisions that have cost some landlords “big bucks.”

The “problem” is mostly at flea market or swap shop projects, but there is no legal principle that would exempt “legitimate” shopping centers if a tenant is selling counterfeit goods. What we find interesting is that the only places we’ve seen a lease provision directly addressing this issue are at “super-max” centers where the probability of a tenant deliberately selling such goods is pretty low.

We’ll begin with some background. Everyone knows that trademarks are protected by law. To get all of us on the same page, here is how the United States Patent and Trademark Office explains a trademark: [Read more…]

Print

How Do I Lose An Exclusive Use Right? Let Me Count The Ways

Print

If you operate a liquor store at a shopping center, would you like to be the only one there? Of course, you would. It isn’t like a dress shop where other stores would have different styles and price points and those other dress shops will bring you business as well. But, when it comes to wine and liquor, everybody carries the same core items. Some will skew their wine offerings in one direction; others may have a different wine focus. But, when it comes to wine and liquor, all merchants have the same merchandise available to them and all can sell whatever everyone else sells.

So, it will come as no surprise that a large-scale liquor store at a shopping center negotiated and was granted some exclusive use protection. This is exactly what its lease provided: [Read more…]

Print

Doing A Deal – Is Your Credibility For Sale?

Print

Benjamin Franklin might not be pleased with the way we turn-around documents. After all, to him is attributed the quotation: “Time is money.” We all know that. Why do deals, even simple ones, take too long to complete? There are legitimate reasons and there are those that shouldn’t exist. As to those that shouldn’t exist, far too often, people lie about them and create “reasons.”

While we are dragging out old gnomes, here’s another one: “Whatever you may have misplaced, you’ll find it in the last place you look.” Translated for today’s blog posting, the last person to receive a document for review or negotiation is the one who gets blamed for: “It is taking too long.” That’s not fair! [Read more…]

Print

Go Ahead, Just Slap On Some Extra Words!

Print

Is it masochistic to want to read court decisions? Given that most of society frowns upon masochists, it’s probably good that very few of us who create transaction documents actually read any such decisions. [That’s sarcasm.] It seems to us that what we do is engage in some “on the job training,” but mostly we rely on the wisdom of our ancestors – those who wrote the documents we use as templates. If today’s blog posting were a sermon then, fortunately, we’d be preaching to the choir. You, our readers, by being such and, almost certainly, by your reading of more erudite materials than these postings, are, unfortunately, the exception in our chosen field. Today, Ruminations salutes you.

We’re not sure why we felt compelled to express those thoughts today. Perhaps it is because we were thinking about the mix of topics in our blog postings and why we use court decisions as to the central focus for about two-thirds of those postings. Our conclusion was that we learn more from mistakes than successes. In general, it is often difficult to find a mistake, and in our own work, very much more so. [That’s not necessarily because our own work, and we’re talking “collectively,” couldn’t be “better.” It’s just that we don’t see errors in it where others do.] Almost all court decisions point out mistakes people have made. Reading such decisions is how we learn. [Read more…]

Print

Purchase Rights And Poison Pills

Print

There is so much to say about purchase rights: straightforward ones, rights of first refusal, rights of first offer, rights of last offer, and rights of first notice). There is so little time to do so. [For those with time to spare, click HERE for a primer.]

Very often, a contractarian approach is taken by courts when exploring contract terms. After all, absent overreaching in one form or another by one party, those participating in commercial transactions are believed to be grown-ups. That is, they are expected to understand the impact of their agreements and to abide by the consequences. However, there are exceptions. Today, as we describe a New York court’s protecting a party’s right of first refusal to purchase a property, we get yet another opportunity to drag out a well-worn Ruminations’ topic: The Implied Covenant of Good Faith and Fair Dealing. [Read more…]

Print

Who Knew Purchase Options Could Be So Complicated?

Print

We don’t know if there are more ways to write a purchase option in a lease “wrong” than right,” but we do know opportunities abound. Here are a couple of examples. The first is based on a statement of California law within a court opinion from March of 2018. [See it by clicking: HERE.] Basically, that court lifted text from earlier cases, each of which is pretty stark. Here they are:

Where an option to purchase exists within a lease agreement, the exercise of the option to purchase causes the lease and its incorporated option agreement to cease to exist, and, instead, “a binding contract o[f] purchase and sale c[omes] into existence between the parties.”

[W]hen defendant exercised the option granted her to purchase the property by making the first payment of $500 thereunder, the lease and option agreement no longer existed and a binding contract of purchase and sale came into existence between the parties.

Further, a consequence of the termination of the lease agreement is that the former lessee’s obligation to pay rent under the lease also terminates, unless there is an express stipulation that requires continued rent payments after the exercise of the purchase option.

Where the relation of landlord and tenant exists under the terms of a written lease, containing an option to purchase which the lessee exercises, [and it is exercised,] he is no longer in possession as a tenant, but his possession is that of a vendee.

[Read more…]

Print