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Landlords should include language their lease that states that the tenant has sole right to prescribe the weight and position of all machines, mechanical equipment, and ventilation systems within the space.
Whether you are a retail or office tenant, use of vibration absorption materials need to be part of the equation when designing and building out your space.
Public establishments such as restaurants and bars should have echo-absorbing panels on walls and ceilings.
A tenant’s creation of noise and vibration disrupting other tenants in the building has no effect on a tenant’s right of quiet enjoyment of its space.
Landlords should require that a tenant immediately notify landlord of any noise complaints a tenant receives.
Tenants who are concerned about privacy during business meetings and negotiations should consider installing extra insulation, sheet-rocked ceilings, and/or extended walls in their office space.
A landlord advocate should include in a lease that if a tenant does not promptly rectify poor performance involving noise and vibration complaints, landlord has the right, at landlord’s own cost, to install sound and vibration attenuation countermeasures to stop the disturbance.
The following remedies are commonly found in leases to help a landlord deal with noise and vibration issues from a tenant:
A tenant should request that its landlord install solid wooden doors, as opposed to hollow doors, to cut down on noise emanating from its office space.
If a tenant’s operations are known to be louder than a traditional office space, a landlord should include language in its lease stating that tenant will use commercially reasonable efforts, and will cooperate in good faith with landlord, to address any issues that arise in this regard. But, so long as tenant uses commercially reasonable efforts, no such noise or similar issue will be grounds for any claim of a default or breach to tenant of this lease.
Tenants should be aware of language within a lease wherein landlords shift the legal and financial burden of compliance with applicable laws pertaining to its space and its proportionate share of the buildings to tenants.
Tenants should readily agree to language in a lease that requires that tenant be in compliance with present law and future laws, regardless of whether or not tenant’s space was in fact legally compliant on the date possession of the space was delivered by the landlord.
A tenant should attempt to revise or eliminate language in its lease that states that tenant is “taking the space ‘as-is’, with no representations or work of any kind or nature required by landlord.”
Tenants should take an “it is what it is” mindset and accept language in its lease that the landlord will deliver the space and the building in non-compliance with applicable laws.
It is not important to a tenant for the landlord to represent and warrant that the premises is in compliance with all applicable laws upon delivery to the tenant.
Tenants should negotiate a carve-out in the compliance with laws provision of the lease, which expresses that any act or omission of landlord (or landlord’s employees, agents, contractors or representatives), which causes an illegal condition in the space, should be the tenant’s responsibility to cure.
From a landlord’s perspective, tenant’s should not be required to pay their proportionate share of any money spent by landlord for alterations or improvements to the building that are required to be made pursuant to law or regulation after the lease start date.
If a lease provides that tenant is required to pay its proportionate share of any money spent by landlord for alterations or improvements to the building that are required to be made pursuant to law or regulation after the lease start date, tenant advocates should at least make sure that the expense passed through to the tenant is spread over the asset’s useful life on a straight-line basis in accordance with GAAP (i.e., Generally Accepted Accounting Principles) and not upon a useful life determined in landlord’s sole (and maybe reasonable) discretion.
If a lease provides that tenant is required to pay its proportionate share of any money spent by landlord for alterations or improvements to the building that are required to be made pursuant to law or regulation after the lease start date, tenant advocates should make sure that the period of amortization for the improvement is spread over either the term of the lease or payable in a lump sum.
It is in the tenant’s best interest for the useful life of an improvement or alteration be determined in landlord’s sole discretion.
With regards to alterations or improvements to the building that are required to be made pursuant to law or regulation, IRS tax rules don’t allow a landlord to accelerate the period over which certain improvements are amortized.
As a tenant advocate, you should attempt to make sure that the lease contains language wherein the landlord represents that, to the best of its knowledge, the demised premises are in compliance with all applicable legal requirements, both as of the lease execution date and the lease commencement date.
It is uncommon to find language in a commercial lease along the lines of, “Failure to any extent to make available, or any slow-down, stoppage or interruption of, services resulting from owner’s compliance with any law or requirements now or hereafter established shall not render owner liable for damages or entitle a tenant for an abatement of rent.”
Tenants should attempt to secure language that provides that when confronted with a business interruption scenario, its rent will be abated if the interruption continues for greater than a three (3) to ten (10) business day period.
From a landlord’s perspective, landlords should make sure that the lease clearly states that the tenant is responsible for all hazardous materials introduced to the building and/or premises through tenant.
Tenant advocates should counter language that makes tenant responsible for hazardous materials at the premises or the building with language that tenant shall not be liable for any hazardous materials existing in the premises and/or the building (a) prior to the lease commencement date or (b) subsequent to the lease commencement date if not introduced to the property, the building and/or premises by or through tenant, tenant’s agents, employees, invitees, contractors, customers and/or vendors.
Tenants should include language in the lease stating that “The tenant shall be under no obligation to remedy any current non-compliance of the premises as of the lease commencement date with applicable laws.”
Tenants should negotiate for language in the lease which states that, “Tenant must comply with any law or cure any illegal condition if the illegality or necessity to comply existed or arose before the tenant took possession of premises.”
Generally, landlords prefer to warrant that the building is in compliance with the Americans with Disabilities Act (“ADA”).
If tenant is unable to negotiate language reflecting landlord’s warranty that the building is ADA compliant, tenant should at least attempt to secure language stating that the premises leased to the tenant is ADA compliant.
Tenant advocates should negotiate for language expressing that landlord is solely liable for existing and future compliance under the ADA, and should indemnify and hold tenant harmless from and against all damages, claims, liabilities, actions and proceedings relating to any failure by landlord to comply with the ADA.
Tenant advocates should negotiate language stating that tenant has no obligation to comply with ADA except and only to the extent that it is applicable to the interior of the premises and only if required as a result of tenant’s alterations or manner of (as opposed to permitted) use.
Landlord advocates should provide in the letter of intent and in the lease that not only shall tenant take the premises “as-is,” as of the lease commencement date and at all times thereafter at tenant’s sole expense, tenant must comply with all present and future laws, rules, codes, orders and regulations of all governmental and quasi-governmental entities, boards, departments and commissions (including but not limited to the ADA).
Landlord advocates should include the following within its lease: “Tenant hereby acknowledges and agrees that notwithstanding anything to the contrary contained in the Lease, it shall be Tenant’s sole responsibility, at Tenant’s sole cost and expense, to install (or modify, as the case may be) any additional restrooms (or modify a bathroom that is in compliance with the American with Disabilities Act, if required) within the Premises as required by any rules, regulations, laws and/or codes of any governmental or quasi-governmental agency prior to the opening of Tenant’s business operations.”
Tenant advocates, if the context of the transaction permit, should wherever possible insist on the following language: “Landlord represents and warrants that the common area and the Premises as of the Lease Commencement Date are (or will be) in compliance with all applicable governmental and quasi-governmental laws and regulations (including, without limitation, ADA Requirements).”
It is in the landlord’s best interest to provide language stating that tenant shall have no obligation to comply with ADA, and landlord shall perform any acts necessary or appropriate to comply with ADA.