What do you do if your commercial leasing agreement is breached?
Discovering a breach in your commercial leasing agreement can be unsettling. This contract, which outlines the terms between you, the lessee, and the lessor, is legally binding. A breach occurs when either party fails to fulfill their obligations, such as non-payment of rent or failure to provide a safe environment. It's crucial to address a breach promptly to mitigate any potential legal or financial repercussions. Understanding your rights and the steps to take can empower you to handle the situation effectively.
When you suspect a breach of your commercial lease, the first step is to thoroughly review the agreement. Look for specific clauses that outline what constitutes a breach and the remedies or penalties involved. It's essential to gather evidence of the breach, which could include missed payments, failure to maintain the property, or any other actions that go against the terms of the lease. This evidence will be crucial if you need to take legal action or negotiate a resolution.
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Evan Keith Langert
Maryland Commercial Real Estate Advisor
It depends in part whether you are the landlord or the tenant. In most leases, the landlord has a lot more rights and remedies reserved to it in the event of a breach. They can draw on the security deposit. They can sometimes remedy the breach and bill the tenant back for it (plus a hefty administrative fee). Conversely, tenants rarely have the right to withhold rent or other monies or to utilize self help remedies or terminate their leases. Every situation requires a thorough review of the facts and the lease provisions. There are certainly legal remedies. However, I've negotiated multiple situations successfully utilizing practical considerations that outweighed the available legal remedies. Talk to counsel AND to a good broker.
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Juan José Guevara Ramirez
Financial Services Representative at: TrueVision Insurance Group
Identify Breach. The first step is identify who and why the lease is being breach. and have a deep look into the lease agreement, searching for a possible violation(s) and its cures.
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Dhruv Agarwal
Building Logistics Parks || Entrepreneur
1. Read the agreement thoroughly. Read it multiple times to understand it in detail. The more you read, you will get more clarity on your rights. 2. Identify the breach post reading the agreement. Check with agreement if it’s really a breach. 3. Involve the agreement drafting person & negotiating person who has been there during the process. They will help to give more clarity and insight on terms which are agreed and on what basis. Many times things get missed or are not detailed in agreement, but understood between the negotiators. 4. Once this is done you will have more clarity on the breach and where you are. 5. Communicate to the other party on that breach. Communication is key. The communication should be to the concerned person.
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Victoria Strom
Working close with investors to maximize return and create a healthy environment for clientele. Property Management & General Management experience since 2012. Office: 361-436-0610
First I would try to resolve the situation with the client. Then initiate the procedure for court proceedings. In the meantime send the tenant a notice of breach to avoid stretching it out. If all options are exhausted seek legal advice pertaining to filing a formal claim. Take legal action.
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Sharon Goodale
Executive Search Consultant @ Adecco | Direct Hire, Permanent Placement
The best approach when your commercial leasing agreement is breached is to first review the lease terms for clarity on the violation. Next, initiate a conversation with the breaching party to resolve the issue amicably. If communication fails, issue a formal notice detailing the breach and necessary actions for remedy within a reasonable timeframe.
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Peter Fischbach
Tampa Bay's Business Space Detective
The real answer... kick yourself for not using a tenant rep. that has negotiated the dents prior to having one appear later in the game.
After identifying a breach, it's wise to seek legal advice. A lawyer specializing in commercial real estate can provide insights into your rights and the best course of action. They can help you understand the implications of the breach and guide you through potential responses. Legal counsel can also assist in drafting any necessary correspondence to the other party, ensuring that your communication is clear and legally sound.
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Dhruv Agarwal
Building Logistics Parks || Entrepreneur
Understanding your rights is important but I feel that involving legal is not needed at this stage. A commercial lease or any lease is an association between two or more parties. If there’s a problem, the solution should be communication and reliving the matter mutually. Even if the other party is being unreasonable, we should try to resolve the matter. If there is a commercial hit, then you should check internally whether it’s something that you can bear or it’s something you can’t live with. If it’s something such can be manageable, you should take the hit but inform the other party of this loss. By doing this, you create an obligation that you’ve gone out of the way helped the other party. This will help you grow.
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Juan José Guevara Ramirez
Financial Services Representative at: TrueVision Insurance Group
Search into the clarification of the breach and try to mediate with the breacher. Seek a legal advise to review your point of view in the possible violation in case of mediation is not a possible way of continuing negotiation . Discuss it deeply with the lawyer and find the ways to carry on in accordance to the lease agreement
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Alexander Szikla
Managing Partner at Rockson Advisory | Real Estate Investor & Advisor
1. Review: Check the lease agreement for breach details. 2. Document: Collect evidence of the breach. Notify: Inform the breaching party in writing. 3. Negotiate: Discuss resolutions if possible. Legal Advice: Seek guidance from a real estate lawyer. 4. Enforce Remedies: Pursue lease termination, damages, or other remedies. 5. Arbitration/Mediation: Consider alternative dispute resolution if specified. 6. Legal Action: File a lawsuit if necessary. Act promptly and document everything for protection.
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Sharon Goodale
Executive Search Consultant @ Adecco | Direct Hire, Permanent Placement
Should the breach persist, legal recourse might be necessary, including lawsuits, arbitration, or mediation, guided by commercial real estate law specialists. Concurrently, mitigate damages by seeking alternative arrangements, like finding new tenants or premises. Keep meticulous records of all communications and actions taken. Swift and thorough action is key to protecting your interests and minimizing potential losses.
Effective communication is key when dealing with a breach. Reach out to the other party involved in the lease to discuss the issue. It's often possible to resolve breaches through open dialogue and negotiation, especially if the breach is minor or unintentional. Be sure to document all communications for your records. If an agreement is reached, have it put in writing to avoid any misunderstandings in the future.
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Apoorv S.
Commercial Transactions and Disputes Lawyer
Once the specifics of the breach have been ascertained, the next step is to reach out to the other party regarding the same. Getting on the same page about the said breach solves half the problem, it opens negotiations, so as to, what remedy is required to solve the dispute. That requires impeccable communication of any and all grievances that the parties may have. Setting up clear grounds before the negotiations begin is beneficial since it can lead to a swift resolution and avoids further legal proceedings.
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Dhruv Agarwal
Building Logistics Parks || Entrepreneur
Effective and properly communication is very important. Don’t draft letters like legal letters, as it’s very harsh or straight to the point. You should send mails stating the problems you’re facing because of the lease and state facts with evidence. Giving it more time helps the other person resolve the matter. In case there is no result, then joint meetings should be held for resolving the matter. Involving the broker or consultant is very important at this stage. They help you in many matters and help resolve the issues mutually.
If communication leads to negotiation, focus on reaching a mutually acceptable solution. This might involve revising certain lease terms, agreeing on a payment plan for overdue rent, or granting additional time for the other party to remedy the breach. It's important that any renegotiated terms are fair and realistic, ensuring that both parties are satisfied and that the lease can continue without further issues.
When negotiations fail, legal action may be necessary. This could involve mediation, arbitration, or going to court. Mediation is a less formal process where a neutral third party helps resolve the dispute. Arbitration is more formal and results in a binding decision. Court action is usually the last resort due to its public nature, expense, and time consumption. Your lawyer will advise on the best approach based on the situation.
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Juan José Guevara Ramirez
Financial Services Representative at: TrueVision Insurance Group
Take legal action ONLY if is necessary. Mediation and arbitration are the way to go Allow to your legal advisor to show you the proper way and procedure to arrive safe. Leave the heart out of this Do not interfere with your legal advisor point of view, unless you are more prepare in legal matter in which case you better fire him Avoid court at all means.
Lastly, it's crucial to protect your interests throughout the process. This means adhering to the lease terms yourself and maintaining a professional demeanor. Keep detailed records of all interactions and decisions made. If you're the lessee, ensure that your business operations comply with all lease stipulations to avoid further breaches. As a lessor, maintain the property as required and fulfill all landlord obligations.
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Dhruv Agarwal
Building Logistics Parks || Entrepreneur
1. Communicate clearly. Mail, Letters, Pictures or anything relevant should be sent. 2. Involve the brokers or consultants. 3. Legal should be last resort. 4. Try to see if by compromising on terms, the solution is achieved. 5. If business is bad and terms have to be rearranged, then see to it that you get longer commitments in return for some upfront benefits. 6. Document everything.
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Sharon Goodale
Executive Search Consultant @ Adecco | Direct Hire, Permanent Placement
It is crucial that the terms are followed by both parties so that the they can avoid the instance of a potential breach and its consequences. You may also seek legal advice prior to entering into a commercial lease agreement for any particular time period to ensure that the agreement meets your goals and also includes possible exit clauses.
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