Recording Your Lease

Posted by Lee Sterling | Posted in Uncategorized | Posted on 25-02-2009

Commercial leases usually contain a cluase concerning whether or not the lease, or a memorandum thereof, can be recorded.  As a Tenant you should always request the right to record a short form memorandum of the lease. You don’t want to record the whole lease because that would let the world know all the terms of the lease. But, you do want to record the short term memorandum because that will protect your rights in the event a lender attempts to foreclose on the leased property. You’ll have to be given notice because of the recording.

Sometimes the lease will provide for the unfettered right for either party to record a short form memorandum, other leases provide that either party has to get permission of the other party before recording,  and some absolutely prohibit the recording.

Check with your attorney and discuss this clause before signing a lease that prohibits the recording of a short form memorandum of lease!

Pressure on Landlords Favors Tenants

Posted by Lee Sterling | Posted in Uncategorized | Posted on 20-02-2009

This morning, as I was getting ready to go to a meeting, I was listening to NPR (89.5 fm here in Carlsbad). One of the lead articles was the pressure on General Growth, the second largest shopping center company in America. The largest is The Simon Company, and, from Australia, we have the Westfield company, which owns the Westfield Mall in Carlsbad. You can hear or read the article at www.npr.org .

The gist of the article was that shopping center developers borrow money just like homeowners do to acquire properties. There’s a big difference, however.  A homeowner can usually obtain a 30-year mortgage, but shopping center developers, commercial office and industrial developers, and buyers of that kind of property often find they can only get a five to seven year mortgage, and then they have to refinance. Well, commercial property owners are now going through the same crunch that homeowners are facing. Lenders aren’t willing to lend!

In order to justify commercial building mortgages, landlords have to project income. They want spaces filled. Now is a great time to be negotiating for new space or renegotiating your lease as a tenant. The balance has shifted so that the pressure on landlords now favors commercial tenants!

It’s Not Like Renting a Home

Posted by Lee Sterling | Posted in Uncategorized | Posted on 10-02-2009

There are some significant differences in the laws that apply to renting or leasing commercial space compared to the laws applicable to renting a home. As a Colorado real estate attorney (not licensed to practice law in California) I negotiated leases for commercial space and for residential space, and, sometimes, had to litigate evictions or other tenant-landlord issues. In each instance we had to make sure that we were applying the right standards to the issues.

Whenever a tenant is deliquent in paying the rent due, the landlord has to give a 3-day notice to pay or vacate. If the tenant of a home offers to pay a portion of the rent due, and the landlord accepts the partial payment, the right to evict for the noted non-payment will be terminated. In the commercial lease, the partial payment of the rent due, even if accepted by the landlord, may not terminate the landlord’s right to evict. Most commercial leases provide that the acceptance of partial performance does not negate the landlord’s right to terminate occupancy for default.  Landlords and tenants that we dealt with always made sure that there was an agreement about the effect of partial performance!

Because it’s not unusual for a commercial lease to be 30-50 pages in length, it’s a good idea to deal with a real estate agent who can advise you properly on negotiating the lease and can refer you to competent legal counsel. And, if you’re thinking about renting a home, the same advice applies. Leases, in either situation, are complex legal documents that require good counsel. If you have any questions of a general nature about lease law or real estate law you can write me at: Lee@LeeSterling.com.  I can’t give specific legal advice, but I can address general questions that might be of interest to a number of people.