“And, If Not” – The Question Left Unasked: Crafting A Lease Requires Thoughtfulness


https://www.bobbimccormick.com/gj4lm50nx6l The court opinion we wrote about last week continues to bother us. It wasn’t only about the court decision’s primary question of whether an “election,” once made, can be revoked. There is a second aspect that bothers us, one that we will get to about 300 words from now. First, we’ll summarize what bothered us about how the lease didn’t “do the right thing,” “didn’t keep the question out of a court.” And, if the parties went to court, the lease didn’t give the court a rule or even guidance.


As to whether a notice, once given, can be revoked, we know that the parties crafting an agreement should cover that in their agreement. We also know that if the non-electing party reasonably incurs damages when relying on such an election notice, it should be made whole. If they don’t, then what should the rule be? Last week, we saw a court look at a lease that was silent on the question as to whether a landlord that sent a 12-month notice requiring a tenant to temporarily vacate its premises could change its mind two months before the required move-out date. It ruled that the election made by the landlord requiring such a move-out could not be rescinded. What the court failed to do was to adequately explain why it ruled that way. [Read more…]


Exercising An Option – Can You Change Your Mind?


https://www.angelinvestmentnetwork.net/s6ruunh0 We agree with most judicial decisions, though there are a very few we think are misguided (read that as “wrong”). But, it isn’t very often at all when we’re not sure what we think. Today, we’ll present one of those, a “slip opinion” about whether a landlord could “withdraw” a notice when the lease didn’t say so – either way.

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Buy Diazepam From Uk The lease included a reasonably comprehensive set of provisions designed to allow a landlord to redevelop a multi-tenanted building, one with high-end retailers (and possibly others). The redevelopment, if implemented, would take up to three years before the building could be re-tenanted. The building had to be empty during the redevelopment.


https://markmadsen.com/2022/11/17/u0ydg258 Basically, the lease gave the landlord the right to “suspend” it for up to three years. During the “suspension,” it would be as if there was no lease. When the redevelopment was completed, the lease would spring back into effect, essentially as if time had stopped while the redevelopment was taking place. [Read more…]


How Gross Are “Gross” Sales? And More.


A few weeks ago, we wrote about the distinction between “rights” and “remedies,” but in somewhat theoretical or even esoteric terms. Today, we’ll present a situation that demonstrates a practical intersection of the two. Our story comes from an April 24, 2020 decision from the Appellate Division of the Supreme Court of New York. [That’s New York’s name for its intermediate appellate court.]


Imagine a mall with approximately 150 tenants. One of those tenants (and possibly others) was listed as a “Named Retail Tenant” or as a “Suitable or Successor Replacement Anchor Store,” a “Required Tenant” or “Upscale Tenant” in the “co-tenancy” provisions within the leases of many other tenants at the mall. Basically, if this “Named Retail Tenant” left the mall, dominos could fall. [Read more…]

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Too Wordy To Be Enforceable?


Buy Pex 2 Alprazolam There are lessons to be learned by looking outside of our own field of interest. That was our thinking when we saw a decision out of a New Jersey appellate court last Tuesday. It involved how a document was drafted, an arbitration requirement, and more than questionable behavior by one party. Initially, when we saw that the heart of the case was overreaching by a nursing home, we set the decision aside. But, we were troubled. So, we resumed reading the decision and were rewarded with a tidbit of “wisdom.” What drew our attention was the following provision from the disputed agreement, especially its opening https://pastiebap.com/site-news/g12tw50 229-word sentence: [Read more…]

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The Law Is Not Always Intuitive; Avoid Learning It At Your Own Peril


Often, we come across a court decision based on a narrow set of facts and, thus, limited in its effect. The court’s analysis and the case’s result is primarily of interest to the involved parties and a handful of others who might find themselves in the same situation. Sometimes, however, there is a larger lesson to be gleaned, one not even about the narrow subject matter discussed by the court. As we see it, at the very end of January, a Florida District Court of Appeal Court delivered such a decision.


https://gloriag.com.ar/4tx3gm2g3dd The subject matter before the court was a dispute over the obligation to pay a brokerage commission. Florida law provides that “[i]n the absence of a special contract, a broker is entitled to a commission when that person is the procuring cause of a sale.” We don’t know how many states have a similar law. Our experience is with those whose law requires a written agreement or a specific written substitute for such an agreement. For example, here is the relevant part of New Jersey’s statute [N.J.S.A. 25:1-16]: [Read more…]

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Words Are The Skin Of A Living Thought


https://pastiebap.com/site-news/vesbhqs “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” [Justice Oliver Wendell Holmes, Jr. in Towne v. Eisner, 245 U.S. 418 (1918).] We have loved that quote for nearly 40 years. It tells a lot about the agreements we write.


Consider the word: “maintain.” We looked at how web-based dictionaries define it. According to www.merriam-webster.com, it means: “to keep in an existing state (as of repair, efficiency, or validity).” https://www.ldoceonline.com/dictionary offers that “maintain” means to: “look after something: to keep a machine, building, etc. in good condition by checking and repairing it regularly.” www.collinsdictionary.com similarly offers: “If you maintain a road, building, vehicle, or machine, you keep it in good condition by regularly checking it and repairing it when necessary.” www.lexico.com (powered by Oxford) agrees when it tells us that “maintain” means to: “keep (a building, machine, or road) in good condition by checking or repairing it regularly.” [Read more…]

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Knowledge Is Power. Get Some.


https://militaryanalizer.com/revdqv87b There is a story about a brilliant legal scholar who, after penning an outstanding legal analysis, would turn it over to his students for review and editing. He was asked why he would have young students do the editing instead of doing the work himself. After all, what could they know that he didn’t? How could they, even collectively, know better than he could know? He had a simple response: his students, at that moment, were engaged in the process of learning the very subject matter in the paper. Because their learning was “active,” they were more knowledgeable at that moment. The information was fresh in their minds. [Read more…]

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Two Lease Guarantees Gone Awry


https://kevinreillycollection.com/iidj9pn6 We wanted to a “hit and run” this week based on what we think is a peculiar and wrong court decision about language in a personal guaranty. Then, we came across a second court decision concerning a guaranty, though with no other connection to the “peculiar” one. Given that electrons are plentiful and essentially free, we’ve chosen to tell readers about the later-discovered one first.


The story begins with a 15-year lease that was assigned by the named tenant to a successor only five months after the lease terms started. In connection with that assignment, a guaranty was given to the landlord, one in which the guarantor guaranteed:

Order Valium Online Europe [T]he payment and performance by the [a]ssignee of all its obligations under the [l]ease and all of the obligations of the [t]enant as defined under the [l]ease effective as of the date hereof.

The awkwardness of that text is immaterial to what then happened. About 2-1/2 years later, the lease was further assigned. In connection with this second assignment, the guarantor, in a writing dated about a month later, “confirmed that its guarantee would remain in effect despite [this] assignment….” Then, about eight years after that, the shares of the then tenant were acquired by yet another “tenant,” actually the same one, but with a new shareholder. The parent company of the new shareholder guaranteed the tenant’s lease obligations, the landlord waived its right to cancel the lease by reason of the shareholder change, and, importantly, the landlord received another letter from the original, lease-signing tenant. That letter confirmed the ongoing validity of the original guaranty, using the following language: [Read more…]