In our last two postings, we Ruminated about some of the issues involved in negotiating a lease’s damage and destruction provisions. If you missed those postings, start HERE and then continue HERE. Today, we’re going to Ruminate about whether and when a landlord should or will repair or restore its tenant’s premises or any other part of the property for that matter.
First we’ll fall back on the same questions we ask when someone isn’t paying what they owe. Is it that they can’t or that they won’t? That’s an important part of the analysis, because if “they can’t,” then learn the tune of “Dixie,” because that’s what you’ll be whistling. If you don’t know the tune, click HERE. You see, if the landlord just plain doesn’t have the money, you can’t even collect a damage judgment. And, given that most landlords are single purpose, single asset (the property in question) entities, if the property has burned to the ground, there ain’t nothing. Fortunately, this “pure” you “can’t get blood from a stone” landlord isn’t as common as you might think. You’d need a situation where a great deal of the property (and thus the landlord’s equity) was destroyed and there are no insurance proceeds or financially qualified tortfeasors to “chip in.” [Read more…]
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In a lease, parties can allocate risk as they choose – and often do. Risk need not follow fault, though it often does. So, the question is: how should allocating the risk of environmental liability work as between a landlord and its tenant?
Truth be told, the question Ruminations will really address is: “how much SHOULD a landlord be able to collect from an evicted tenant?” While our answer will be founded on legal principles, it will be based on the law of a fictional 51st state – Ruminamia. Its laws are those of modern states ruled upon by modern courts.
Without a remedy, your lease or other contract is suitable only for framing. And, to save you a trip to the mall, the range of standard size frames does not include 8-1/2 by 11 inches. In two prior Ruminations’ postings – 
Two weeks ago (August 5), we began a four part “schmooze” about the kinds of remedies a non-breaching party might have against a breaching party. If you missed it, click 
Ruminations has been discussing what should happen when a tenant’s exclusive use right is breached. One of the remedies suggested in prior postings, as well in reader’s comments, is the tenant’s right to terminate the lease. That’s a remedy brought up in other contexts as well. So, it seems appropriate to discuss the “lease termination remedy” in a somewhat general way, not just when it come to exclusive use rights. 
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