A Million Dollar Lease Drafting Lesson

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An “Evergreen” contract is one that renews over and over. So does an “Evergreen” letter of credit. So does the topic that follows – how, if your documents are not written carefully, courts may do damage. And, perhaps “written” isn’t the real activity to be scrutinized and “thought-through” would be a better choice of words.

Today, we are going to look at a late April court decision from the U.S. District Court for the Southern District of New York: In re: The Great Atlantic & Pacific Tea Company, Inc. You can see it by clicking HERE.

This is about A&P’s bankruptcy and even without knowing the disputed issue, a very good guess is that the bankrupt estate will be enhanced by the court’s ruling. If that is a little cynical on the part of Ruminations, then so be it. While there are conflicting public policies involved in bankruptcy matters, one seems to loom over almost all others: “get more money into the pot to pay unsecured creditors.”

Read on; look at the decision itself; you decide. [Read more...]

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Getting On The Same Page When It Comes To Operating Expense (CAM Costs) Reporting

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A lot of trees have been cut down for the paper used to write about operating expenses or common area costs. That’s because when you talk about passing along operating costs, you are talking real money. Yet, aside from deals where the operating expense charge is a fixed (and usually escalating) amount, far less negotiation is had for a nickel or a dime per square foot of operating expenses than is the case with the same nickel or dime of basic rent. Yet, a nickel is a nickel and a dime is a dime [See: John Lee Hooker, Bottle Up & Go], whether called base rent or operating expenses. In sum, like weather, everybody talks about it, but nobody can do anything about it. But, is that really true? In part, “Yes”; in part, “No.” Here’s our attempt to start a discussion – kill more trees. [Read more...]

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Why Should Anyone Care If They Don’t Know What Constitutes An Insurable Interest In Property?

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It isn’t intuitive whether someone has an “insurable interest” in someone else’s property, but without one, an additional insured or loss payee will not see any money from that insured’s property insurance policy. This subject, admittedly, is a “little” arcane. So, we’ll try to explain is by way of a story, actually a court’s decision.

There is a lesson to be learned from a recent Bankruptcy Court decision where, most uncharacteristically, the court ruled against the bankrupt estate. Somewhat surprisingly, but probably correctly, it held that a bankrupt tenant’s landlord “owned” the insurance proceeds and took that money out of the reach of the debtor or its other creditors.

Yes, the landlord got to keep the insurance proceeds from insurance the tenant purchased to cover the tenant’s personal property. [Read more...]

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Do I Have To Pay Operating Expense Charges Or Taxes That My Landlord Just Billed Me For After Five Years?

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We’ve pondered, actually struggled, to post a piece exploring the answer to the often asked, “Do I have to pay operating expense charges or taxes that my landlord just billed me for after five years?” What we’ve found is that there is no simple answer if the lease in question doesn’t specifically cover delayed billings like this. That’s also true for related questions such as, “We never increased our rent payment after extending its term and now, five years later, our landlord wants all the back rent – do we have to pay?” Or, to, “We’ve been paying the wrong rent, can we get our money back? [Read more...]

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This Is A (Leasing, Sale, Loan) Deal. Why Have You “Gone Missing”?

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If you don’t like screeds, stop right now and we’ll see you next week after the extended July 4 holiday. Otherwise, tread lightly as you read on.

Doing a lease, a loan or a sale (and things like that) shouldn’t be like doing a divorce; it should be like doing an adoption. These are just business deals; just “money.” No one is or should be besmirching anyone’s reputation, seeking revenge or taking children away. And, even if that were the case, the negotiators are not the angry parties. Presumably, they are professionals. [Read more...]

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How Much Should It Cost To Kick-Out Of A Lease? Not As Much As Is Being Asked.

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Today, we’ll start in the middle of our thoughts by opening with an example that we’re going to return to several times in this week’s posting. You can have a five year lease with an option (in favor of the tenant) to extend its term by five years, or you can have a ten year lease with the tenant having the option to end it at the five year point. In fact, you can do those numbers any way you want. So, what’s the difference?

Psychology aside, probably nothing if the math wizards are at work. Perhaps, one party or the other can play around with the tax treatment given to the lease. But, basically, the present value for each five year segment should be the same. If someone were to suggest that having the right to terminate the lease early protects a tenant against [Read more...]

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What Is A Structural Component? Do You Know?

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Ruminations took a crack at answering this question a whole lot of blog postings ago, but we never felt fully comfortable with the way we tried to fashion an answer. Basically, we tried the “ejusdem generis” approach. [What are you talking about – you behind the keyboard? Our definition used a list of items followed by, “and thing like that.” That’s the essence of the “ejusdem generis” approach.]

Here’s a spoiler. Ruminations isn’t going to do much better today. If you make it to the end of this posting, you’ll also have figured that out. [Read more...]

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Same Tenant? New Lease? Watch Out!

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When the terms of an existing lease between a tenant and its landlord are dramatically changed, the parties frequently terminate their old lease and enter into a brand new lease.  The consequences of doing so are rarely considered by the parties, and they may be surprised to learn the following.

Any particular lease is affected by the terms of other leases at a project, recorded documents (such as Declarations of Restrictions), and the terms of financing documents.  In most cases, the tenant entering into a “replacement” lease had no control over, and no input into, any of those documents.  Frequently, landlords are unaware of important terms of those other agreements. [Read more...]

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