What Is A Landlord’s Duty To Deliver Possession Of The Leased Space?

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Interestingly, and probably not known by many, there are two very different possible legal obligations of a landlord to deliver the leased premises to its tenant. Some jurisdictions require delivery free of occupants and free of other persons entitled to possession of the same leased premises. Other jurisdictions only require that the landlord deliver the “right of possession” to a tenant, leaving it up to the tenant to get rid of any trespassers.

This doesn’t come up very often in commercial leases because almost all of those leases define what constitutes delivery of the leased premises. The smart leases require that the leased premises be delivered free and clear of all occupants and tenancies. Those leases that don’t say that or something like that should be corrected.

Consequently, the real “play” in lease negotiations over delivery issues is “by when,” and what happens, “if not.” [Read more…]

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