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Articles by Ira Meislik

A Short Diatribe On Granting And Crafting Exclusive Use Rights Provisions In Leases

Exclusive Use Rights in Commercial Real Property Leases can be the source of a battle between a landlord and its tenant. This Article presents some concepts that should guide each toward reaching a solution that addresses the legitimate needs and cocerns of each party.

A Liability Insurance Primer for the Business and Real Property Lawyer

Attorneys seem to have a hard time drafting insurance requirements into leases, mortgages, and contracts of sale. Here is a primer that takes a step by step approach to understanding commercial general liability (CGL) insurance coverage. It discusses CGL insurance coverage in the framework of real property transaction, and is accompanied by suggested lease and mortgage insurance provisions.

How to Create Common and Uncommon Assignment/Subletting Problems

Assignment of leases and subletting of leased premises is favored by law and disfavored by landlords. So, landlords strive for leases that place restrictions of a tenant’s ability to freely transfer its interest in a lease. The way in which those restrictions are drafted can result in opportunities for creative ways to circumvent the intended restrictions and wise draftspersons should be aware of those possibilities and opportunities.

Tenant Holdover Tenancies in New Jersey

When a Tenant continues to occupy its leased premises after the Lease term has ended, it is said to “hold over.” Doing so creates a tenancy at sufferance, which may be either a tenancy at will or a tenancy for a period. In agrarian societies of old and even in today’s commercial societies, hold over tenancies are disfavored and many state’s statutes, including New Jersey’s, provide for some form of double rent as the financial remedy for the Landlord for so long as the Tenant remains in possession.

Implied Easements and Easements By Estoppel

There are two implied easement theories - easement by necessity and quasi-easement. Here is a short explanation of the two and a description of the existence of an “easement by estoppel” in New Jersey.

Common Boilerplate Provisions in Real Property Leases: A Commentary

This is a look at “boilerplate” clauses in a typical lease. But, what really is “boilerplate”? The word’s common meaning is a provision that is ordinary, common, and by implication generally acceptable. In reality, there are very few, if any, such clauses in a form lease. This treatment looks at some clauses that are often found in a pre-printed lease form. The format is simple. First, a “standard” lease provision is presented. Then, a look is taken at how its “boilerplate” nature may fail to address legitimate concerns of the parties, most often of the tenant, but significantly, also of the landlord.

What is a Tenant’s Duty to Occupy Its Leased Premises?

Tenants may abandon their leased premises or “go dark.” What rights can a tenant have to do this and what rights and remedies does a landlord have when its tenant leaves the demised premises?

What is a Landlord’s Duty to Repair Leased Premises?

Under common law, a Landlord had no duty to repair the Demised Premises or the Common Areas unless that duty is included within the Lease. That rule still has vitality. Here is a short discussion of the rule and a sampling of Lease provisions that seek to allocate the repair responsibilities between Landlord and Tenant.

What is a Landlord’s Duty to Deliver Possession?

The basic bargain in a lease calls for a landlord to deliver exclusive possession of the premises to its tenant in return for the tenant paying rent. Here are a few thoughts about the landlord’s side of this bargain, including some lease provisions about delivery of possession of the premises.

Be Careful When Entering Into a New Lease With an Old Tenant

A new lease with the same tenant can serve to replace the old lease in some very surprising ways. Consider using an amended and restated lease instead.

A Short Diatribe on Granting and Crafting Exclusive Use Rights Provisions in Leases (with Samples)

Every exclusive use right granted to a tenant impairs the landlord’s ability to lease other space. But, sometimes the deal can’t be made without one. Here is an exploration of some of the issues involved in defining the exclusive use, limiting its effect, and what happens if it is violated.

To Recognize or Not to Recognize - That is the Question: Sublease Recognition Agreements

A subtenant is in a precarious situation. If its sublandord’s lease is terminated, even for a reason having nothing to do with the subtenant’s behavior, the subtenant can find itself out on the street, without a home. That makes it hard to be a subtenant and hard to be a sublandlord. That’s what recognition agreements are all about.

Landlord Lien Waivers: Law and Practice

Landlords and their tenant’s lender and equipment leasing companies compete for lien priority over the tenant’s assets. As a result, those lender and leasing companies frequently require consents and lien waivers from their customers’ landlords. Here are some practice pointers in preparing effective waivers and in responding to requests for them.

How Not to Go Dark at a Shopping Center: Advice for Tenants (and hope for landlords)

It may not matter that a tenant’s lease expressly permits it to abandon its shopping center premises so long as it keeps paying rent. In New Jersey, there is an implied covenant of good faith and fair dealing in all contracts (including leases), and, under some circumstances, that may require a tenant to keep operating its store even if the lease says otherwise.

Tough New Rules on Employee Credit Reports

Companies that use credit reports to screen potential employees are now subject to new rules. If you don’t heed the warnings in this article, be prepared to pay a big penalty.

Be Careful About Moving Your IRA Money

Making a mistake when you move your IRA (Individual Retirement Account) from one place to another can be very, very, very costly. Here’s a description of the two basic ways to make a move and a recommendation about which one to use.

Added Flexibility For Like-Kind Exchanges

Here’s a way that an individual or partnership owning a piece of property can do a like-kind (tax deferred) exchange and own the replacement property in a way that reduces its risk of personal liability as owner of the new property. Section 1031 of the Internal Revenue Code does not permit a change in the identity of an “exchanging” taxpayer, but here is a way that may get you around that limitation.

Not All Retail Leases Are Alike: Pay Attention to the Project!

Choosing a lease form is serious business—one form does not fit all projects. There are structural business differences from project type to project type. Here are some thoughts on the similarities and the differnces and why you should care.

Security Deposit Concerns for the Thoughtful Tenant

Here’s a practical exposition on the why’s and wherefore’s of negotiating leasehold security deposits in commercial leases. It looks at cash deposits as well as alternatives such as letters of credit. It discusses the question of interest, issues of “what does the deposit secure,” and many other intriguing questions.

Community Associations: An Overview

A primer on Community Association law. Intended for the general practitioner, this piece covers the basics of condominium, cooperative, and planned unit development living and law. As an overview, it introduces some basic definitions and highlights issues of community living that should assist attorneys in counseling clients already living in common interest developments or contemplating purchase of homes in such projects.

What Is this Thing Called Quiet Enjoyment? (In the Context of Commercial Leases)

If it doesn’t amount to eviction or constructive eviction, but its more than a trifling nuisance, what have you got? Explore the boundaries of the covenant of quiet enjoyment as it now stands in the U.S. so that you can help landlords and tenants protect the benefit of their lease bargain.

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