Though today’s posting isn’t really about “radius restrictions,” that’s what’s behind today’s observations about liquidated damage lease provisions. A radius restriction is a restrictive covenant. Thus, they have to be reasonable as to distance, duration, and scope. We’ve seen few modern cases centered on those parameters. So, we think restrictions that are coterminous with the lease term are reasonable as to time. Distances corresponding with a shopping center’s market area also seem reasonable. Limiting their scope to a lease’s use clause also seems to pass muster. [Read more…]
PrintRetail Real Estate Law
Liquidated Damage Remedy Or Just A Bargained For Higher Rent?
Kick-Out Clauses as Circuit Breakers – A Contrarian View
Here at Ruminations, we often short-cut any deep thinking about proposed agreements or about provisions within those agreements when we see something we call a “circuit-breaker.” For example, we don’t drill down into rent damage clauses when a lease’s term is one year. After all, it takes time for a tenant to fail, and how much time will really be left on the lease after that date? The same goes for an agreement that allows either party to terminate it on 30 or 60 days’ notice for any reason or no reason at all. Why cogitate when a party can “kick-out” of an unfavorable agreement or relationship? [Read more…]
PrintSLOOOOOOOW Mail ….. Fuhgeddaboudit
We’re all seeing and hearing clashing views on why the Postal Service’s delivery times are lengthening. Those views may differ, but there doesn’t appear to be any meaningful dispute that it now takes longer to get a letter than we’ve experienced in the last 30 or more years. We’re not going to get involved in the morass of election debates. Instead, Ruminations wants to cut through all of that fog and remind our friends that our mailed notices aren’t getting there as fast as they used to “get.” Worse for our industry, certified mail almost always took longer to reach its destination than “plain” first-class mail. So, when you read about how long the mail is now taking (and there’s been some private testing confirming longer delivery times), add more time if you use certified mail. And, if the commanding document demands “registered” mail, realize that “registered” is not “certified” mail. It takes even longer to arrive at its destination. [Read more…]
PrintHow Long Do I Have To Wait?
There’s a song, Hesitation Blues, first recorded in 1916, that begins with this line: “How long do I have to wait?” It is also a question often asked when a lease or other agreement is silent as to a deadline or permissible period. And, almost always, that question is asked when something has gone wrong. That’s evidence it should be asked at the outset when people memorialize their agreement or expectations.
We just looked at an August 12 decision by a New York lower court. In it, the judge wrote what is generally the law: [Read more…]
PrintDéjà vu All Over Again. How Our Documents Are Written Or Miswritten
We think we’ve found an example that will illustrate one of our long time contentions – we need to skeptically re-read our documents and ask “why” with every line. We need to ask: “Why did we write that? What does it add to the document?” It might be safe to skim right over the “gender” clause, but equally “humdrum, boring” sentences and clauses really need attention.
Here are some provisions from an otherwise uninteresting retail lease. They are discussed in a June 15, 2020 court decision that can be seen by clicking: HERE. [Read more…]
PrintRights, Powers, And Forgiveness – Let’s Loosen Up
Today, we’re going to engage in some pure Ruminating. Most of the time, we (and others who are deeply engaged in this side of the “business”) focus on the “documents.” We think about how they are drafted and often mis-drafted. We read articles and (in “olden” times”) participate in programs focused on how better to do our “job.” But, there are some “rules” that get short shrift. These are rules that regularly have more force than do laws.
One is that there is a difference between having the “right” to do something that is required (or to abstain from doing something) and the “power” to do that thing (or not). Another comes in two versions: It’s easier to ask forgiveness than to get permission; and it’s easier to apologize than to get permission.
The success of either approach might be related to another aphorism: Might makes right. Each reveals two deficiencies found even in the best-crafted agreements. There aren’t enough trees in the world (proverbially speaking) to create enough paper to contain all of the words needed to regulate every possible permutation of conducts or situations. And, much of what we write (and agree-upon) just plain isn’t important; the provisions aren’t really needed. [Read more…]
PrintHow Can One Enforce A Continuous Operation Lease Provision? Not Easily.
Rarely will a court enforce a continuous operation obligation by ordering a tenant to stay in business at its leased space. Yet, from time to time a landlord will seek an injunction to force a tenant to keep its store open. A simplistic explanation as to why courts don’t issue such orders is because landlords need to show an irreparable injury, and if a landlord can be compensated by the payment of money, its injury isn’t irreparable.
Landlords confronted with a tenant bound by a covenant to be “open and operating,” but on the verge of breaching that obligation by closing its store, usually plead the “domino effect,” expressed by Benjamin Franklin thusly: [Read more…]
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