The Chickens Come Home To Roost – Pretext And Tenant Control Over Development

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https://poweracademy.nl/89wdpsj According to Lawrence Peter “Yogi” Berra (May 12, 1925 – September 22, 2015), late of Montclair, New Jersey, “You can observe a lot by just watching.” That’s how we get our “experience” – by watching what we ourselves have done and by what others have done. We can learn from those experiences, “ours” and “theirs.” That’s one reason we read court decisions. Doing so allows us to safely observe what others have done without getting burned, even when the situations covered by these decisions invoke another Yogiism: “It’s deja vu all over again.”

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http://mgmaxilofacial.com/b0dmkhufr6w We came across a late August court decision out of the U.S. District Court for the Northern District of Alabama. It involved a lease dispute at an enclosed mall, one emblematic of the history of such malls. At 300,000 square feet, it opened in 1970 with 32 inline tenants and two department stores as anchors. By 1982, one had disappeared and its parent company soon followed. The following year, a national retailer relocated its own department store from downtown to the now-vacant space. In the mid-1990s, plans were made to expand the mall, based in part on the addition of a third department store building. Some physical impediments delayed those plans and then the contemplated additional department store chain was acquired by yet another. This resulted in a further delay. But, the mall’s expansion opened in 2000, and the mall grew to 700,000 square feet of space. [Read more…]

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Document Creep – Longer, But Not Better?

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Congress ordered that the Declaration of Independence be “fairly engrossed on parchment.” [“Engross” means to “write in a large, clear hand.”] In olden days, lease, notes, mortgages, purchase and sales agreements, and all other documents were also “engrossed,” though unfortunately for researchers, not always in a large, clear hand. Then, copies were made. Where money was short or where the perceived value was absent, those copies were also made by hand. This is a craft no longer in much demand. For more important documents, a printer’s services were used, both for original documents to be executed and for copies of handwritten ones. The reproductions weren’t always faithful to the originals. For example, an early printing of the Declaration of Independence omitted one of the signatories. He was Thomas McKean, and he served as a President of Congress, President of Delaware, Chief Justice of Pennsylvania, and Governor of Pennsylvania. That was no small omission, and to more than just his family.

https://www.kidsensetherapygroup.com/9djuzaq Our early handwritten legal documents had another thing in common with the Declaration of Independence. They were sparse. There were only 1,458 words in the Declaration, fewer than the average length of  Buy Valium Roche Rumination blog postings. [There is a message there, one we’ll ignore.] Here we have a founding document, a revered one (the Declaration, not this blog), yet it is remarkably short. So were leases before typewriters came into everyday use. With their introduction, it became easier to “include and expound.” Combined with the help of carbon paper and onionskin, faithful copies were now economically available. No longer would the copy differ from the original (other than when it came to margin notes and interlineations, a problem sometimes still seen). Along with these advantages, economy, speed, and faithful copies, the documents grew in length.  [Read more…]

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How Long Do I Have To Wait?

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Buy 5Mg Xanax Online 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.

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https://www.amnow.com/b1pm1eosie 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…]

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Déjà vu All Over Again. How Our Documents Are Written Or Miswritten

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https://perfect-deal.nl/uncategorized/tkmeyfqmw1 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.

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http://pinkfloydproject.nl/oqnzoqod 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…]

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And Means And (Or) Or; Let’s Make That Clear

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  • The third (or the fifth) most used word in English is “and.” We looked at one of our “comprehensive” lease forms, one with 32,815 words and found that 1,775 (5.4%) of its words are “and.” We looked at a “national” Loan and Security Agreement (55,104 words) and found that “and” made up 3.3% of its words (1,820 of them). So, it’s about time we looked at this word. One thing for sure is that it is a “conjunction,” that “part of speech” covering words that join phrases. (A minor usage is as a noun. Witness: “He accepted the job, no ifs,  ands or buts about it.”)

One on-line dictionary explains the word’s use as a conjunction in this way: “[It is] (used to connect grammatically coordinate words, phrases, or clauses) [as follows:] along or together with; as well as; in addition to; besides; also; moreover.” [Read more…]

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Notwithstanding What We Write Today, Little Will Change

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http://www.youthministrymedia.ca/523dbe7w “Notwithstanding,” is the draftsperson’s blanket cure to gaps or deficiencies in a document. It is an efficient, fast way to deal with an exception to a generality. As such, sentences beginning with this magic word are useful. They enable us to employ overbroad clauses because “notwithstanding” pulls our language back for the exceptions we have thought about. In other words, carefully written, they achieve the desired purpose.

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https://www.amnow.com/uefdday The ubiquitousness of the “notwithstanding” sentence, however, has a downside – its presence is easily forgiven. Another issue is how we employ this device. Do we write: “Notwithstanding anything to the contrary in the paragraph” or is it: “Notwithstanding anything to the contrary in this document”? Experienced or thoughtful readers know where we are going here. The more limited this caveat’s coverage, the safer it is to use. We only need to focus on a single paragraph or section in a document if our “notwithstanding” carve-out is limited to those words. But, when we encounter the broader statement, that the carve-out affects an entire document, we expose ourselves and others to greater danger. Have we reviewed every other word in the document to see if that word will be modified by our “notwithstanding” language? Ruminations will go out on a limb and venture: “No.” [Read more…]

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More Thoughts About Force Majeure Provisions

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https://parisnordmoto.com/e3l7lkogl Last week, we wrote about a court decision interpreting a lease’s poorly written force majeure clause. If you missed it, click: HERE to see it. Following that blog’s posting, we engaged in some “off-line” discussions with old friends about the scope of force majeure provisions. Basically, our back-and-forths concerned their scope: “Should they be broad or narrow?” Today’s posting is an outgrowth of those discussions.

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http://pinkfloydproject.nl/ynsahm0 Our position last week was that these provisions are “catch-alls,” i.e., they usually cover situations beyond the control of the parties. These clauses usually begin with: “If A, B, C, …, Z,” examples being labor strikes, meteorite crashes, etc. Then the clauses end with: “or other events beyond the reasonable control of a party.” The keyword is “other.” That tells us that A, B, C, and so forth are examples of things beyond the reasonable control of a party. They (A, B, C, etc.) don’t have to be listed. That is if people would agree that they are such. [Read more…]

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Is A Poorly Written Force Majeure Clause Worth The Ink?

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We’ve all seen, or perhaps been assaulted by, a surfeit of articles about force majeure clauses and how all of our agreements should include one. Other pundits have gotten way ahead of this one by explaining how we will have a better world if the advice to include such clauses would be taken by all. They’ve noted that very few agreements with a force majeure provision have covered the kind of closures we have experienced and are still experiencing. But, what we’ve not seen is much understanding that there is nothing special about a “force majeure” clause: it is no more than another risk-shifting device. What differentiates these provisions from co-tenancy or fire damage provisions is that force majeure clauses don’t know in advance how a particular risk will manifest itself. Even though some speak of “labor disputes,” “acts of G-d,” “public enemies,” etc., they invariably end with: “or other events beyond the control of a party” or some such. Without getting into the rules of contract interpretation, we’ll simply note that this teaches that these clauses are intended to relieve one party or the other of an obligation if something beyond the control of the obligated party prevents performance. [Read more…]

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