[WSBARP] Contracting Around Landlord Tenant Law

Fri Feb 12 11:20:08 PST 2021

Thank you Roger for your experience and insight.  First, this was not my provision; The lease came to me when client moved attorneys.  I am also not dealing the larger issues you have in your career.  

The tenant is an elderly person who ran a coffee/knickknack shop in Landlord’s small mall.  Covid shut her down a ago.  However, being somewhat of a hoarder, the shop has a lot of junk in it.  Landlord, also elderly, let tenant stay as long as rent was paid, as tenant’s spouse was dying.  That’s happened.  

The tenant will never reopen the coffee shop but still refuses to move. She’s tried to sell the business but is unreasonable in terms and has lost several interested buyers.  Landlord just wants to get the unit back.

I agree with you that tenant may not do anything if Landlord exercises the option.  She lacks both the money and desire to fight.   Landlord is also willing to store her stuff for a limited time for her to remove it.  

I just wanted to find out if there is any case law on these self-help contract clauses.  Obviously, on the residential side I would never even think of putting such a provision in a lease.  But Courts seem to give commercial parties more leeway.

Jeff

From: Roger Moss <ram at rinconres.org> 
Sent: Friday, February 12, 2021 11:04 AM
To: jeff at bellanddavispllc.com; RPPT Section <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Contracting Around Landlord Tenant Law

Jeff that is a very odd provision, and it would be helpful have more context.

These comments are made without reference to any moratoria rules, and spring from my experience in leasing roles for chain-stores and large shopping center organizations.

My colleagues and I saw and often crafted thousands of uni-lateral rights to cancel leases. Examples include the one Starbucks puts into new store deals, and landlord clauses that give them the absolute right to recover space that may be essential to redevelop a property.

The clauses are easy to write, but very detailed; scriveners work hard to avoid any ambiguity of intent, purpose or outcome. 

It is common for retail chains who acquire other retailers, and landlords who buy properties to redevelop, to find imperfect leases that contain cancelation rights that are ambiguous. The best strategy to deal with it is to exercise the damn option, and be prepared to negotiate from strength.

With the other facts you describe, there does not seem much downside to exercising the option and then sit back and see what happens. 

The tenant may be relieved to get it.

Roger A. Moss 

Managing Director
Rincon Resolutions LLC
206.790.1971 Seattle

415.371.9724 San Francisco

RinconRes.org <http://RinconRes.org> 

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On Feb 12, 2021, at 9:59 AM, Jeff Davis <jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> > wrote:

Listmates:

Commercial Lease.  It contains a remedies provision when Tenant defaults that allows for a non-judicial termination of the lease on ten days’ notice.  The clause specifically states “No judicial action is required to terminate the lease pursuant to this paragraph.”  

The lease, by its terms, ends June 30, 2021. The tenant closed its business over a year ago yet still stores things in the unit; rent has been paid, sporadically, but usually only after a letter from me.  Client wants to invoke the 10 day termination clause.  To what extent are parties to a commercial lease allowed to contract around the landlord tenant law?  Here Landlord would be using the 10 termination clause to shorten the contract term and forego any unlawful detainer action to judicially terminate the lease.

Your thoughts!

Jeff Davis

W. Jeff Davis, Esq.

BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129 
Fax No.: (360) 683.1258 
email: info at bellanddavispllc.com <mailto:info at bellanddavispllc.com> 
www.bellanddavispllc.com <http://www.bellanddavispllc.com/> 

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