Always be thorough when drafting a commercial lease.
Even experienced real estate lawyers often are not so specialized that they do only (for example) multi-tenant gross rent office leases, or only retail leases, or only industrial leases, or only restaurant leases. Whether training junior lawyers, or refreshing one’s recollection of issues for a given type of leasing transaction, checklists of “silent lease issues” can be very helpful to attorneys in every jurisdiction. If every particular client’s deal is different, each deal can nevertheless benefit from being viewed through the lens of the old “what may I have missed?” inquiry for both the lawyer and the client.
Perhaps the best versions of these checklists for commercial space leasing originated with the Commercial Leasing Committee of the New York State Bar Association in 1998. The third edition of the “Tenant’s Checklist of Silent Lease Issues” (see The Practical Real Estate Lawyer, Sept. 2012) covers a tremendous range of possible issues “that could arise or occur when two parties have potentially conflicting interests in the same real property over potentially a very long time.” Its authors, S.H. Spencer Compton and Joshua Stein (the latter having been the one who “conceived, initiated and edited” the checklist from its inception) have produced a truly comprehensive document which any leasing lawyer, and any real property lawyer, should keep handy. There is also a “Model Landlord’s Checklist of Silent Lease Issues” (NYSBA, N.Y. Real Property Law Journal, Fall 2013 [Vol 41, No.3])
While it is clear that not all issues will or should arise in a given leasing transaction, the whole point of a checklist is to assure the client that legal counsel has not “missed” something which should have been addressed. Both checklists are also routinely instructive as a series of questions for clients and their brokers, who may not have addressed the details in a letter of intent or term sheet proposal. No need to remind our readers where the devil hides in any transaction!
There are also more specialized leasing issues checklists. For example, an article entitled “Retail Lease Review Checklist” in The Practical Real Estate Lawyer (March 2011) by Jo-Ann M. Marzullo of the Boston firm of Pasternak Blankstein & Lund LLP provides an excellent checklist for retail leasing
One of the hallmarks of a true professional is acquiring knowledge from other professionals as a matter of routine. These checklists live up to that ongoing requirement!