Recently in commercial lease Category

Adhesion and Unconscionability in Commercial Leases - The Cotenancy Provision, Part 2.

January 28, 2015

Last week I discussed a cotenancy provision in a California commercial lease, where the court found that the rent abatement aspect - if the specified cotenant was not operating, the tenant's rent is reduced or eliminated - was found to be an unenforceable penalty. That court also looked at whether the provision was unconscionable, and thus unenforceable. Unconscionability (codified at Civil 1670.5) has no specific legal definition, but generally means extreme unfairness. Business and real estate attorneys often see a situation where one party gets a really bad deal, but that alone does not make it unenforceable. California courts have developed an analysis requiring two elements, "Procedural," and "Substantive." In the decision being addressed here, the court found that Procedural element was not fulfilled so the cotenancy provision was not unconscionable.

Sacramento commercial lease unconscionable attorney.jpgIn Grand Prospect Partners, LP, v Ross Dress for Less Inc., Ross entered a lease in a commercial center in Porterville, CA. The lease required that Mervyn's be open when the Ross store opened, and Mervyn's was to remain in operation for the term of the Ross lease. If Mervyn's was not operating, Ross could cease paying rent, and also terminate the lease. Mervyn's filed for bankruptcy before opening in this center, so the cotenancy requirement was unfulfilled, and Ross declined paying rent. In the ensuing lawsuit, the Landlord claimed that the cotenancy provision was unconscionable, and thus should not be enforced.

Procedural Unconscionability.

The procedural element involves the circumstances of contract formation. It addresses oppression and surprise due to unequal bargaining power that results in little negotiation and no meaningful choice. This can be shown in two ways - either by showing that it is a contract of adhesion, or by the totality of the circumstances surrounding the contract.

A. Adhesion

The California Supreme Court has defined the term "contract of adhesion" to mean (1) a standardized contract (2) imposed and drafted by the party of superior bargaining strength (3) that provides the subscribing party only the opportunity to adhere to the contract or reject it.

Here, the lease in its entirety was not a preprinted form. There were extensive negotiations, including five versions of the lease. Thus the lease itself did not qualify as one of adhesion.

The landlord argued that the cotenancy requirement requiring a Mervyn's itself was a clause of adhesion. "Procedural unconscionability focuses on the manner in which the disputed clause is presented to the party in the weaker bargaining position. When the weaker party is presented the clause and told to 'take it or leave it' without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present." (Szetala (2002) 97 CalApp 4th 1094, 1100)

Sacramento commercial lease adhesion attorney.jpgThe court disagreed in this case. When, as here, when the relatively stronger party insists on including a provision in an otherwise enforceable contract, it does not turn the entire contract into an unenforceable one of adhesion. This differs from the situation where, for example, a clause is added to and existing contract by amendment, on a take it or terminate the contract basis (like a bank giving you the choice to accept the amendment or close your account.)

B. Totality of The Circumstances

The court noted several relevant circumstances for this element:
- Sophistication of the parties,
- Time Pressure,
- Economic Pressure,
- Pressure from Coercion or Threats,
- Relative Bargaining Power, and
- Meaningful Choices.

In this case, the landlord had 33 years in the real estate industry, was sophisticated real estate manager, and understood cotenancy provisions. Ross did not exert any time pressure; the negotiations went from 2005 through 2008. The landlord was not economically vulnerable, as there was no evidence it was having problems paying its debts nor had a balloon payment coming due. There were no threats. Ross was the larger company and may have greater bargaining power but there were still legitimate negotiations and the landlord had meaningful choices. Ross may have absolutely demanded a cotenancy provision, but the terms of that provision were subject to negotiation. Lastly, the landlord had other prospective tenants to fill the space, and the landlord had actually approached Ross in the first place.
Based on this analysis, the court concluded that there were real negotiations between the parties, and that the landlord was given meaningful choices. The court concluded that there was no procedural unconscionablity here. California law requires establishing both the Procedural & Substantive elements; with one missing, unconscionability was not grounds for invalidating the cotenancy requirement.

California Commercial Lease Cotenancy Provisions: When they Can Be Unconscionable or an Invalid Penalty

January 22, 2015

Cotenancy provisions are often required by larger retail tenants in shopping centers of all sizes. They require other specified stores in the center to be open and operating, on the assumption that these other stores will draw the desired mix of potential customers. They come in two flavors; opening requirements, meaning that the requirement is fulfilled before the tenant is required to open; and Operating requirements, meaning that the tenant's obligations continunue only so long as the named tenants remain in business. Parties to a commercial lease may need to consult with a Sacramento real estate attorney to clearly define the cotenancy requirements in their lease, so that they do not face any surprises, as one tenant faced in a recent decision when their cotenancy provision was found to be an unenforceable penalty because the tenant had never really considered what its harm would be if the named store did not open.

Sacramento commercial lease attorney.jpgIn Grand Prospect Partners, LP, v Ross Dress for Less Inc., Ross was negotiating with a shopping center owner Porterville, in Tulare County. Ross wanted a cotenancy provision that required a Mervyn's to opening and running before Ross was required to open. If Mervyn's did not open, or ceased operating, Ross would not owe rent, and did not have to open a store. (The terms of the lease are more fully set out below). Two months after the parties signed the lease; Mervyn's filed bankruptcy, and never opened its store in the Portville center. Eventually Ross notified the landlord that it was going to terminate the lease under the cotenancy provision. This lawsuit ensued, with Grand Prospect, the landlord, claiming that the lease was unconscionable, and the cotenancy rent abatement provision was an unenforceable penalty.

Under California law, an unenforceable penalty lacks a proportional relationship between the forfeiture compelled and the damages or harm that might actually flow from the failure to perform a covenant or satisfy a condition. The test requires a comparison of

(1) the value of the money or property forfeited or transferred to the party protected by the condition to

(2) the range of harm or damages anticipated to be caused that party by the failure of the condition. If the forfeiture or transfer bears no reasonable relationship to the range of anticipated harm, the condition will be deemed an unenforceable penalty.

Here, the lease rental payments (plus CAM charges) which were to be abated were $39,000 per month. However, in negotiating for this provision, the evidenced showed that Ross did no study or analysis to see what the impact of Mervyn's traffic would have on the profits of a Ross store sales. Ross was unable to say whether the closure of Mervyn's stores in other centers where Ross was located impacted Ross sales. Thus, the trial court found that Ross anticipated that it would not have any losses due to Mervyn's absence. When the 1) value of money forfeited, $39,000/month, was compared with the damages anticipated by Ross, $0.00, the Court concluded that the rent abatement provision was an unenforceable penalty.
It is surprising to me that a retailer as large as Ross did not have any analysis of the harm closure of other stores in centers which Ross had a presence. This case is a clear lesson, in any rent abatement situation, for a tenant to determine (before signing the lease) what harm it may actually incur if there is to be a rent abatement.

Commencement Date Requirement: Mervyn's was to occupy no less than 76,000 square feet of leasable floor area, on Ross's commencement date.
"Commencement Date Reduced Occupancy Period" was defined as beginning with the failure of one of the required tenants to be open for business on the commencement date of the Lease and continuing until cured. Ross was not required to open its store for business. That section also stated that, "regardless of whether [Ross] opens for business in the Store, no Rent shall be due or payable whatsoever until and unless the Commencement Date Reduced Occupancy Period is cured."

Ross also had an option to terminate the Lease conditioned upon (1) the Commencement Date Reduced Occupancy Period continuing for 12 months and (2) Ross giving 30 days' notice of termination prior to the expiration of the Commencement Date Reduced Occupancy Period.


How you can determine if your real estate contract is specific enough to be enforced - what essential terms are required.

Let's get this out of the way - the only essential terms for a real estate sale contract are the identities of the buyer and seller, the property in question, and the purchase price. Essentially, that is the law in California. Of course, the courts have found ways around the rule, but the trend of the law favors carrying out the parties' intent once the court has determined that the parties had intended to make a contract. The courts will hear evidence of the parties' intent to explain essential terms. (Okun v. Morton, 203 Cal. App. 3d 805) Sacramento real estate attorneys are occasionally asked about contracts in which all the standard details are left out, and asked how to enforce, or deny, the contract. When there is no time for payment specified, I always advise the "a reasonable time" is inferred, whatever that means in the circumstances. Such a situation was addressed by the Supreme Court when a tenant wanted to enforce a purchase option that was included in the lease.

sacramento real estate purchase attorney.jpgIn Patel v. Liebermensch, the tenants leased a condo in San Diego. The lease included the following purchase and sale option:
"Through the end of the year 2003, the selling price is $290,000. The selling price increases by 3% through the end of the year 2004 and cancels with expiration of your occupancy. Should this option to buy be exercised, $1,200.00 shall be refunded to you."
The option contract did not specify the time or manner of payment, which the landlord claimed rendered the agreement unenforceable. The court of appeal decided that, while it might be reasonable in some circumstances to imply standard terms on these points into the contract, here it was not, because the seller contemplated conducting a 1031 exchange (which would have specific timing requirements) which involved serious tax consequences.

The Supreme Court disagreed, finding the option real estate purchase contract enforceable. The seller's undisclosed intentions are not considered part of the contract.

It first noted that the equitable remedy of specific performance cannot be granted if the terms of a contract are not certain enough for the court to know what to enforce. (Civ.Code, § 3390, subd. 5)

In the absence of express conditions, custom determines incidental matters relating to the opening of an escrow, furnishing deeds, title insurance policies, prorating of taxes, and the like. "The material factors to be ascertained from the written contract are the seller, the buyer, the price to be paid, the time and manner of payment, and the property to be transferred, describing it so it may be identified." However, the manner and time of payment may be determined by "reference to custom and reason when the contract is silent on the question, unless the contract includes seller financing provisions that are not sufficiently clear enough to protect the seller."

el dorado real estate option attorney.jpgThe court concluded that, since time and manner of payment are terms that may be supplied by implication, they are not material elements that must appear in writing in every real estate sale agreement. What is for sure is that in a contract for the sale of real estate the delivery of the deed and the payment of the purchase price are dependent and concurrent conditions; the happen at the same time, and not without each other.

Civil Code section 1657 applies here to interpret of the contract: "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly--as, for example, if it consists in the payment of money only--it must be performed immediately upon the thing to be done being exactly ascertained. The purchase price is deemed payable upon delivery of the deed.

Thus, the case was sent back to the trial court to determine what a "reasonable time" for payment was. To determine this, the parties will have to have evidence from real estate professionals, testifying as experts, as to what a reasonable amount of time is standard in San Diego residential sales for escrow to close.


California Commercial Lease - How to Determine if Option to Renew is Not Enforceable

California commercial leases often include options for renewal of the lease beyond the initial term. Option terms can provide the duration of the renewal, and describe the future rent, or provide a mechanism for calculating the rent to be paid. But, frequently commercial lease attorneys encounter leases that are not so specific. They can describe the procedure for exercising the option, and the future term or terms, but only provide that the rent was to be as agreed upon. Lessors and landlords do this to provide some assurance to the potential tenant that they may be able to stay in the location for another tenant without committing themselves to rent terms, or even that this tenant. The tenant who has not consulted a real estate attorney enters the lease with the false comfort that they have the right to stay if they want. Such was the case in a Supreme Court decision where the tenant, who had made significant improvements to the property, learned that they did not have a right to stay.

ElDorado real estate and leasing attorney.jpgIn Ablett v. Clausen the Lease provided these option terms:
the lessees 'shall have the first right and a prior option to secure a lease upon said premises before the same are offered to any other person, firm or corporation for lease or rental and that said option shall contemplate a lease for a period of five (5) years upon terms to be then agreed upon.'
The landlord and tenant had some disputes about grading in the parking area of the property where the tenant had the 'Rite Spot' restaurant;, and the landlord's refusal to allow the tenant to remodel the restaurant. So, the landlord told the tenant that they would NOT renew the lease on expiration - the option was terminated. The tenant filed suit to have the court declare they were entitled to another five year rental, under the same terms and conditions.

The trial court ruled in favor of the tenants, so the landlord appealed. The tenant argued that the provision, 'first right and prior option', does not in any way qualify the right of renewal. The court first noted that terms as 'first privilege', and 'first right', and concluded that such provisions do not give the lessee an absolute right to a renewal, but one conditioned upon the lessor's leasing the property, in which case the lessee may have first refusal.

Sacramento real estate option attorney.jpgThe landlord argued that the option provision does not give even a conditional right to a renewal, but is too uncertain to be enforced; it is just an agreement to contract in the future, which is not enforceable. Here, the court noted that the rule is that where "either party by the terms of the promise may refuse to agree to anything to which the other party will agree, it is impossible for the law to affix any obligation to such a promise." There are some court decisions which find that when the only term of a lease which still requires the parties' agreement is the rent, there can be an exception allowing the court to determine a reasonable rent. But here, the Supreme Court found this permissible only where there are some ascertainable standards in the option for the court to decide the terms of the lease. That is not the case here. The original Lease was nine pages long, yet the only term provided by the option provision is how long the renewed lease would last. There is neither discussion of rent, nor a standard by which it may be calculated. Thus, the terms were not specific enough to be enforced.

This opinion takes a long time to get to what was really the obvious conclusion - where the option requires the parties to agree in the future, it is false comfort for the tenant to think they have a right to renew the lease.


The Disappearing Sublease - What can happen if the Sublessor files Bankruptcy, and ways to protect the subtenant or assignee.

March 11, 2014

California commercial tenants sometimes need to sublease their premises, or assign the lease. Without fail, they remain liable to the property owner for the lease, in the event that the subtenant does not perform. Breach of the lease does not automatically terminate it - the owner must exercise its right to terminate the lease. But what happens if the sublessor files for bankruptcy protection? In bankruptcy the bankrupt sublessor has 60 days to "assume" the lease. (Bankruptcy Code section 365(d)(4). In the 9th circuit Federal Court (covering California), if the lease is not assumed, the bankrupt owner's right to possession under the lease ends. (In re Lovett 757 F.2d 1035) The master lease no longer exists, extinguishing all subordinate rights, such as a Sublease. Suddenly, the sub-tenant no longer has a lease, and is out in the cold. The California Court of appeal decision discussed below adopts this rule. Parties considering a sublease may want to consult with a Sacramento real estate attorney. A solution to the disappearing sublease may be, at the time of entering the sublease, for the subtenant to enter a non-disturbance agreement or option to enter a new lease with the property owner.

sacramento sublease attorney.jpgIn 366-386 Street LP v. Superior Court (Monro), Paem was the assignee of the lease for Rosebud's English Pub on Geary in San Francisco. In the assignment transaction, Paem gave to the assignor a note and deed of trust, secured by the business. Paem filed Chapter 11. The bankruptcy court rejected the lease, and thus the debtor (and trustee) no longer had any right, title, or interest in the lease. This extinguished the assignor's security interest in the lease.

The Assignor then filed a state court action, seeking relief from forfeiture of its security interest under Code of Civil Procedure section 1179. This section provides that The court may relieve a tenant against a forfeiture of a lease whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174.

sacramento landlord attorney 3.jpgThe court of appeal first noted that the rejection of the lease by the bankruptcy court extinguished the lease, and the debtor no longer had any interest in it- likewise, all subordinate interests were extinguished. The court then noted that, here, the secured party was not a tenant seeking to be restored to the leasehold, nor was this the required unlawful detainer proceeding, so section 1179 did not apply.

A subtenant in a similar situation may not actually have notice of the bankrupt cy filing, and be up to date with rent and all other requirements, but suddenly be out on the street. To have a chance of surviving, the subtenant should have a separate agreement with the property owner, either a non-disturbance agreement or an option to enter a new lease. Either of these would be a contract directly with the owner, not affected by intermediate bankrupt party. Thus, the bankruptcy would not impact the subtenant's right to possession. A non-disturbance agreement would provide that the owner would not terminate the subtenant's right to possession, on notice and curing of all defaults. It would also provide that the subtenant would be entitled to all the bankrupt parties rights under the lease.

Option Agreements with other lease or purchase conract attached - when the binding contract is formed.

January 21, 2014

Option agreements for sale or lease of property often have a form of lease or purchase agreement attached, to be entered on exercising the option. The expectation is that, if the option is exercised, the attached contract will be signed by the parties and govern the transaction. Occasionally the option will contain all the terms, and not attach a form contract, and may or may not refer to entering an agreement. Sacramento and ElDorado real estate attorneys advise clients to prepare the Agreement and attach it to the option, otherwise there could be a dispute when the option was exercised. In pone such case, after the option to lease property was exercised, the property owner backed out. His legal argument was that the option was only a contract to enter a contract, and did not affect title to his property. The court said no, in this case, the option was sufficient as a lease.

In John Gavina v. Lon Smith, Plaintiff Gavina granted Defendant an option for an oil and gas lease on Gavina's property. The option stated all the details of the lease, (set out below), but also had an attached lease form that, on exercise of the option, was to be signed by the parties. Smith exercised the option and deposited the money in escrow. Gavina refused to accept the money from the escrow, did not sign the formal lease form, offered to give Smith the option fee back. Essentially, they told Smith to get lost. The lawsuit resulted.

sacramento lease attorney.jpgThe judge was not impressed by Gavina's conduct. Because of the nature of the suit (quiet title), it first addressed the question of whether the option itself created a contract, or was merely an executable contract to make a lease. It found the intent of the parties, as expressed in the option agreement, to set forth in both the option and the attached form of lease all the terms and conditions on which Gavina's offer to lease was made. By exercising the option, Smith accepted the offer and agreed to the lease on the those terms. The requirement of a written lease was satisfied. (Statute of Frauds) Nothing more was required to make a binding lease.

"Where the parties, however, have agreed in writing upon the essential terms of the lease, there is a binding lease, even though a formal instrument is to be prepared and signed later. The formal instrument may be more convenient for purposes of recordation and better designed to prevent misunderstanding than the other writings but it is not essential to the existence of the lease." Just because they expected to enter a written lease does not let them off the hook for a contract they already signed.

The decision had a caveat, though, to reign in its impact. "Since the execution of the formal contract would add nothing to what the parties had already agreed upon," there is no reason to say that the agreement they had made was not enforceable. The question raised is that, if the lease contract that was attached added any terms or conditions, would that make a difference? In this case, probably not. I think the court would have found an intent that the terms of the attached lease were incorporated into the option agreement. Thus, they were already agreed to.

But what if the lease agreement had not been attached, and the option indicated that it was subject to entering a formal lease agreement? This is the same language used at superior court settlement conferences in California, they are often "subject to entering a formal settlement agreement," or "formal documentation of releases," or something similar. The parties get the case 'settled,' so it is taken off the trial calendar, everybody sighs relief, and then the negotiating over the formal settlement agreement gets complicated, maybe even falling apart, and the parties go back to set a trial date.

Here are the Option terms:

-Rent was $1.00 per acre per year payable in advance.
-If drilling operations were not commenced within one year from the date of the lease, the lessee could extend the period of the lease for four years by paying $1.00 per acre for each year.
-Plaintiffs' royalty was to be one-eighth of all production.
-Surface rights were to be retained by plaintiffs for agricultural purposes.
The lessee was to pay for any injury to livestock, trees, crops and improvements
-On the exercise by defendant of the option and the payment in advance to plaintiffs of a rental of $1.00 per acre for one year, plaintiffs agreed to execute and deliver a completed oil and gas lease on the attached form.
-The money for the rental could be deposited in escrow with instructions that it be paid to the lessors upon receipt of the executed oil and gas lease.


Notice in a California Commercial Lease - The Lease Language Governs, Most of the Time

December 12, 2013

In commercial leases the landlord and commercial tenant may agree to notice procedures that differ from those provided in the statutory provisions governing landlord - tenant relations. Residential leases are different, given the Legislature's long standing concerning with protecting unwary residential tenants, and the swift process of unlawful detainer. The courts respect the terms of the commercial lease regarding notice. In one decision the Lease provided for notice to the tenant by mail or email "at" the specified address, and the tenant acknowledged receiving the email at a location other than the specified address. The court said it was not good enough, and even though it is naive to think of the location where an email is received, that's what the Lease required. In recent decision out of San Luis Obispo, the court declined to follow the letter of the lease, because the tenant's attorney instructed plaintiff's attorney to contact the attorney only.

Sacramento landlord attorney 2.jpgIn Eucasia Worldwide School Inc. V. DW August Co. The Lease provision read: "The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice."

The parties did not get along at all. Due to the strained relationship, the tenant's attorney's assistant, on attorney letterhead, directed landlord's counsel to "have NO DIRECT CONTACT with" appellant without [the attorney's] "express permission."

The landlord wanted to inspect the property, as provided for in the Lease. The landlord's attorney wrote a letter to the tenant's attorney asking who to "contact regarding property inspections..." The letter implied that notice of the inspection should be given to the attorney or, in his absence, to whomever the attorney designated. The tenant's attorney did not respond to the letter. The Landlord's attorney then provided notice of inspection to the tenant's attorney, and made the inspection. All heck broke loose, and the tenant sued the landlord for conducting the inspection without giving notice.

The Court said that notice was proper. In isolation, the lease notice provision required notice to be mailed to the tenant at the premises. Interpretations of contracts must fair and reasonable, not leading to absurd conclusions. The court noted that It would be absurd if the law required (1) strict adherence to the letter of the contract and (2) disregard of counsel's direction not to contact the tenant directly. The landlord was lawfully permitted to mail the notice of inspection to the tenant's attorney.

If the tenant's attorney believed that the lease required notice to be given directly to appellant at the premises, he should have said so when the landlord wrote him and asked. Instead, he did not reply. The court also noted that the tenant was equitably estopped from alleging that the giving of notice to counsel violated the lease notice provision. "The object of equitable estoppel is to `prevent a person from asserting a right which has come into existence by contract, statute or other rule of law where, because of his conduct, silence or omission, it would be unconscionable to allow him to do so.

This wacky set of facts is probably all due to the parties not liking each other. The tenant did not want to receive any direct communications from the landlord. I believe the landlord's attorney was correct to act as they did. But is this situation, parties should consult their Sacramento real estate attorney for advice. A better choice may have been to have the landlord itself send the notice, both to the attorney and to the tenant according to the lease provision. Then the tenant's only complaint would be that they made direct contact, but that was what the lease provided.


California Commercial Lease Negotiations - The Landlord's CAM Estimates May Need To Be Accurate, And The Landlord Cannot Raise The Percentage

September 12, 2013

Commercial tenants entering lease in California are usually required to pay their proportionate share of "common area maintenance,", or CAM charges. The CAM charges are always characterized as an estimate- at the end of the year the landlord determines the total costs incurred for the year, and then apportions them out to all the tenants. However, if it is a new development, sometimes not even built, the lessor must base the Common Area Maintenance charges on true estimates- what they predict will happen based on experience on other projects, or otherwise a best guess. At the end of the year, they figure out the real charges, and usually the tenant has to make up a big deficit. Sacramento and Placer real estate attorneys are frequently consulted regarding CAM charge disputes; often, there is a big jump in the charges, and the tenant can't believe they are justified. In a recent decision, the parties entered a letter of intent regarding an unbuilt project. Even though the CAM charges which were described were clearly described as an estimate, the landlord was surprise when the court said the landlord may be liable for fraud and breach of the covenant of good faith and fair dealing.

Sacramento commercial lease CAM.jpgIn Thrifty Payless Inc. V. The Americana at Brand, LLC, Thrifty entered a letter of intent to enter a lease of property from Americana. The project had not been built yet, but Thrifty had experience with Americana on other leases, and the CAM charges were reasonably accurate. The Letter of Intent ("LOI") Americana proposed stated three estimates- property taxes, insurance premium, and common are maintenance. The CAM estimate was $14.50. Thrifty crossed out $14.50 and wrote that a budget was to be presented to Thrifty. Americana responded with a budget, saying that Thrifty's pro rata share would be 2.2% of the budget, or $14.50. The parties entered the lease agreement. Of course, American ended up charging Thrifty much more for the three line items, including CAM charges at 5.67% of the total instead.

In the lawsuit, Thrifty alleged that Americana knew the representations were not true at the time they were made, or were made with no reasonable basis to believe that they were true. Thrifty alleged that its reliance was reasonable because of their prior experience with Americana. Citing other decisions, Thrifty claimed that estimates that the party should have known were inaccurate were grounds for misrepresentation. Thrifty found out that Americana was telling other potential tenants that Thrifty was paying a higher percentage that 2.2%, and that Americana had cut a deal with a theater to charge it less that its pro rata square footage rate. Great evidence!

Yolo commercial property.jpg
The Fraud Exception to the Parole Evidence Rule

Americana argued that the Lease has an integration clause, which it claimed barred evidence of the prior negotiations (called parole evidence). This is true, but an exception has arisen in fraud cases. It requires that evidence offered to prove fraud "must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing." Thus, here Thrifty can allege both intentional and negligent misrepresentations based upon Americana's grossly inaccurate estimates. In addition, the information Thrifty presented established that Americana knew or should have known the information was inaccurate--Americana told other prospective tenants that their pro rata shares would be substantially higher than the rates represented to Thrifty, and Americana cut a deal with a movie theater to charge it less than its pro rata share based on square footage.

Seems that Americana's conduct was not too trustworthy. It is rare that a commercial tenant gets this kind of evidence to fight the CAM charges, an expensive proposition.


Jurisdiction of California Courts After the Civil Suit Is Decided - Sometimes It Continues, but There Are Limits

California Courts sometimes reserve jurisdiction over parties or an action after the case has gone to final judgment, for various reasons. Jurisdiction is generally the power to hear and determine the claims of the parties. Some examples of court's holding on to jurisdiction are to to enforce settlement in an action at the request of parties; or to determine the distribution of a fund of money deposited in court; and to make such other and further orders and decrees as might be deemed proper to carry out the judgment. In fact, there is a specific procedure to have the court reserve jurisdiction to enforce a settlement agreement. Where parties reach a settlement agreement that requires one or both parties to perform some acts that will not be complete within 45 days, they can file a "Notice of Conditional Settlement" per Rules of Court Rule 3.1385. In the Notice, they give the Court a date certain that the suit will be dismissed. Until then, the case becomes inactive, and off the court calendar, but still the court has jurisdiction to enforce the terms of the settlement agreement until the dismissal date.

sacramento real estate attorney option.jpgHowever, there is a limit to how long the court may keep jurisdiction over the parties. In Stump's Market, Inc., v. Plaza De Santa Fe Limited, LLC, Stumps had rented space for a grocery store in a shopping center from Plaza. The relationship had lasted several years. They negotiated a modification granting Stump five additional five-year options. The rent included a calculation of the percentage of sales (percentage rent). There was some water damage in the parking garage below Stumps grocery store. Plaza said it was caused by condensation from Stump's freezer. Stump disagreed, claiming that it was due to a leak that Stump had informed Plaza about.

They did not agree on what caused the damage, but they agreed that Stump would go ahead and repair the damage. They apparently did not agree (at least in writing) if, and how, they would split the cost. They got into a dispute as to paying for the repairs, calculating percentage rent, and Stump's exercise of the next option. The lawsuit ensued.

At trial the jury did not believe Plaza's witnesses, and found for Stump. In addition, the court retained jurisdiction until the judge decided that Stumps no longer had a right to occupy the premises. The life of the lease- another 17 years.

The court of appeals said that's crazy. It first noted that jurisdiction over a cause or parties after a final judgment, order, or decree is exceptional and limited to special situations. The jurisdiction of a court of equity to enforce its decrees is coextensive with its jurisdiction to determine the rights of the parties. Jurisdiction of the cause continues for this purpose, or leave may be expressly reserved to reinstate the cause for the purpose of enforcing the decree, or to make such further orders as may be necessary.

Yolo real estate lease attorney .jpgBut here, the court retained jurisdiction to solve problems that did not yet exist, concerning an arms-length contract. Here, there is no future event that is certain to occur. Under California law, a case must present an actual controversy between parties before the court will consider it. Here, there was only a concern that there may be a controversy sometime in the next seventeen years.

Oh well, Stump almost hit the jackpot. To be able to waltz into court anytime you think the landlord is not playing fair, without the expense of filing a new lawsuit, would be sweet. Plaza realized what a precarious existence it would live for the next seventeen years, and wisely appealed the decision.


California Commercial landlords have two new disclosure requirements in 2013- Energy Use, and whether the property meets accessability standards

February 12, 2013

California landlords are faced with a myriad of regulatory requirements for disclosures as well as enforcement of their leases. Two new mandatory disclosures for commercial leases will be required in 2013- past energy use of the building, and whether the premises have been inspected by a "certified access specialist", and if it was inspected, whether or not it passed. Property owners with concerns about their leases and disclosures should consult with a Sacramento and El Dorado commercial lease attorney to have their questions answered.

Sacramento El Dorado commercial lease attorney energy use.jpgENERGY USE REPORTING

The new law was actually enacted in 2009, required the California Energy Commission to set a schedule for rolling out, over time, the disclosure requirements. The commission adopted regulations in July 2012 setting the schedule:

--Owners of buildings with a total floor area of more than 50,000 square feet must begin making the required disclosures on and after January 1, 2013.
--Owners of buildings with a total floor area of between 10,000 square feet and 50,000 square feet must make the disclosures on and after July 1, 2013.
--Owners of buildings with a total floor area of between 5,000 square feet and 10,000 square feet must make the disclosures on and after January 1, 2014.

Covered commercial landlords are required to do the following:

A. At least 30 days before entering a contract to sell, lease or borrow against the entire property, the owner must register with the EPA's Energy Star Portfolio Manager.

B. The owner must instruct their utility providers to upload their data on the building's energy use to the owner's account at the website.

C. The building owner must then use the Portfolio Manager account to generate a "Statement of Energy Performance" for the building, and a "California Energy Performance Report." This will provide the EPA's benchmarking data and ratings for the most recent 12-month period for the subject building.

Sacramento commercial lease attorney access inspection.jpgACCESSIBILITY INSPECTION

Effective July 1, 2013, California law will require every commercial property owner or lessor to state, in leases signed starting July 1, whether the property has been inspected by a "Certified Access Specialist" (CASp), and, if so, whether the
property has or has not been determined to meet all applicable
construction-related accessibility standards..." Civil Code section 1938.

A CASp is a person certified by the California State Architect to inspect commercial properties for compliance with accessibility laws. The advantage to landlords, and there is only one, is that if the landlord had the inspection, and the property was approved as accessible under the law, the landlord has some extra umph in defending a disability lawsuit - at which point they should contact a real estate attorney. Of course, if the landlord does not pass the exam, they then have an obligation to make the necessary changes to comply (or risk losing a valuable tenant who does not want a non-qualifying property). Given the frequency of change in the access rules, it is good that the statute does not require a new inspection before every new or renewed lease agreement.

California commercial lease provisions prevents claim for constructive eviction or breach of covenant of quiet enjoyment - the right language saves a landlord.

January 15, 2013

California real estate law, and often commercial rental agreements, provide the tenant with a right of quiet enjoyment. This means that the landlord promises that during the term of the tenancy no one will disturb the tenant in the tenant's use and enjoyment of the premises.

If the covenant of quiet enjoyment is breached, the tenant has a choice- he can stand on his lease and sue for damages, or vacate the premises and claim constructive eviction. A 1994 Third District decision found that the a Lease provision prohibited the lessee's claim for constructive eviction, restricting his rights to a claim for damages or injunctive relief. While this is bad for tenants, the law is clear, and Commercial landlords and tenants entering leases should consult with an experienced Sacramento real estate and leasing attorney to be fully advised as to the terms of their contracts.

constructive eviction.jpgIn Lee v. Placer Title Company Placer was the tenant in a shopping center. Their premises were next door to a dry cleaners. Placer claimed that cleaning fumes made the office unusable, stopped paying rent, and vacated the premises. Lee sued for the balance of the rent owed on the lease as damages. Placer raised, as a defense, constructive eviction.

The lease provision which covered landlord defaults stated:
"In no event shall Tenant have a right to terminate this Lease as a result of Landlord's default and Tenant's remedies shall be limited to damages and/or an injunction."

covenant of quiet enjoyment.jpgThe court first noted that the covenant of quiet enjoyment is codified in California at Civil Code section 1927. But this covenant may be waived by the parties; another code section (3268) provides that some statutes are subordinate to the intention of the parties. Here, the parties modified the covenant by limiting the tenant's remedies to damages or an injunction only- they cannot terminate the lease. Thus, the tenant could not vacate the premises and assert a constructive eviction defense.

This language is a boon for landlords, and a bust for tenants. If a tenant could prove interference with their use of the premises, the likely result would be reduction of rent for the duration of the interference. Meanwhile, the tenant is stuck with the premises though it may be difficult to do business. They may have to set up shop temporarily elsewhere, a digester for a retail location, and an additional expense (though the expense could be included in damages.)


California commercial landlord and mitigation of damages- rents from later tenants can offset rent owed before the first lease was terminated.

Generally with California commercial properties, when a tenant defaults there is an unlawful detainer, and the landlord is awarded as damages the rent due until the judgment. If the lease contract would have gone for a longer term, the landlord may later sue for the balance of the rent due for the remainder of the terminated lease. In a confusing decision from Southern California, the landlord collected more from the later tenants than the evicted tenant could ever owe.

california commercial lease.jpgKumar v Yu involved a shopping center lease that was not to end until July 2006. In November 2003 the first tenant was evicted, and the landlord got a default judgment for rent then due. (This default was set aside, but there is not further explanation in the decision). The landlord rented to a second tenant, who was evicted. The unlawful detailed included a judgment for over $21,000, which was paid. The landlord rented to a third tenant, who agreed to a much higher monthly rent. In 2007 the landlord sued the first tenant for the balance of the rent due under the original lease.

Generally, to recover damages from a tenant for the remainder of the term after a commercial lease has been terminated, the lease must provide that the...

"damages the landlord may recover include the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award, or for any shorter period of time specified in the lease, exceeds the amount of such rental loss for the same period that the lessee proves could be reasonably avoided." Civil 1951.2(c)(1)

The language "could reasonably be avoided" addresses mitigation of damages. If the landlord wants to collect, he must make a reasonable effort to relet the premises. If he does, then the rent received from the new tenant is subtracted from what the defaulting tenant may have owed. In our case, the landlord, in the good old days before 2008, was able to increase the rent, and get paid.

The landlord argued that the rent he received from tenants two and three can be applied in mitigation (or an offset) only against the damages the first tenant owed after he vacated the premises. But the court said no. Civil Code §1951.2(a)(4) provides:

"Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee's failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom."

The allowance for subsequent tenants' rents is not a setoff, but simply a method of determining actual damages to the lessor as a result of the breach of the lease. A party damaged by a simple breach of contract may not recover more on the breach than he would have received if the contract was fully performed.

This may be the first published opinion that allows mitigation against rent owed before an unlawful detainer, but it makes sense. It is really only a matter of contract damages. Parties in such situations are advised to consult an experienced Sacramento leasing attorney -post termination damages are complicated and involve a calculation of pre and post termination rents, subsequent tenants, and when to try and collect. I did say this decision was confusing. Mitigation of damages is standard practice. The landlord could have calculated that he was paid more then the first tenant owed after lease termination. Why did he bother with the lawsuit?

California Letters of Intent & Proposals - When a proposal was really a contract, and the $16 million dollar surprise

Recently a federal court in Northern California found that a document which one party claimed was a non-binding proposal was really a binding ground lease agreement with purchase options, which resulted in a 16 million dollar damage award. The proposal concerned development of the Santana Row project in San Jose. Generally, creating of a valid contract requires mutual assent. An "agreement to agree, " without more, does not create a contract. In this case the court found more.

Santana Row.jpgIn First National v. Federal Realty, First National controlled the property but did not want to sell it yet. Federal unsuccessfully offered to buy, and the parties entered negotiations for a ground lease that lasted several years. They exchanged several proposals, including a "counter proposal" and a "revised proposal." Finally the both signed a document titled "Final Proposal," a one page document. Earlier proposals stated that they were non-binding; the final did not include this language. It stated that it was "accepted by the parties subject only to approval of the terms and conditions of a formal agreement," and Federal was to prepare a formal legal agreement. And it provided that First National could require Federal to buy the property any time over a period of ten years; and that Federal could force First National to sell at the end of ten years (the "Put and Call"). Federal never prepared a formal agreement, and decided it did not want the lease.

The court First looked at the specific language of the Final Proposal. It did not include the standard non-binding clause, and said that its terms were "hereby accepted by the parties subject to" only a formal agreement. The court then looked at the surrounding circumstances. There was the passage from counter to revised to final proposal.

A lease agreement such as this is required to comply with the Statute of Frauds. This requires that there must be a signed written memorandum that states the essential contract terms with reasonable certainty.
Federal argued that the proposal fails this test because it is missing a term for the duration of the ground lease. But the court noted that the term does not have to be express in the contract, but could be explained by extrinsic evidence.

Extrinsic evidence is something beyond the written words which is used to explain terms that were understood by the parties but are unintelligible to everyone else. Here the ten year period of the "Put and Call" implies a ten year duration. Parties involved in extensive negotiations and are concerned about letters of intent should consult with an experienced Sacramento and El Dorado business and contracts attorney who can guide them in making sure the documents accomplish what they intend for them. The court here found all the essential terms to make a binding contract, which resulted in a 16 million dollar surprise for Federal.

California Lease with Option To Extend - Exercise By One Tenant May Not Bind Others, And The Lessor Can Waive Strict Requirements

March 11, 2012

California commercial leases and rental agreements often have an option which allows the tenant -lessee the right to extend the term of the lease. Generally, the option language provides a specific method to exercise the option, and if the lessee does not follow the procedure, courts find the option was not exercised. In a recent decision, a tenant did not follow the required procedure, but the landlord waived the procedure, extending the term. However, three other tenants did not request the extension, and were not liable for rent. To avoid these kinds of problems parties to a commercial lease with an option should consult with an experienced Sacramento and El Dorado real estate attorney.

In Kavin v. Frye property was leased to open a dress shop in southern California. Kavin was the lessor. There were four lessees who signed the lease, but only two, Andrea and Sessi, were active in the dress shop. The other tenants (Frye & Morgan) were required to sign on primarily as guarantors of the lease. The agreement contain an option to extend the term. The option had to be exercised in writing no later than six months before the end of the term of the lease; if not done, the option automatically terminated .

store_display_1.jpgThe option was not exercised within the time period (and was terminated according to the lease). Meanwhile Sessi had a baby and gave up the dress shop, leaving it all to Andrea. Two weeks after the time to exercise the option passed the land went to the sop and asked Andrea if she wanted to extend. She said yes, so he dictated to her the words she wrote and signed the paper exercising the option. Andrea never discussed exercising the option with any of the other three tenants. Eventually, Andrea could not pay the rent any more, and abandoned the place with over a year left on the extended term. Kavin sued all four lessees for the balance of the rent for the full extended term.

The court found that the other three tenants were not bound to the extended term, and did not owe any rent. The deadline to exercise the option had passed, and the option was automatically terminated. The landlord argued that he had waived the deadline requirement, and so it should be enforceable as to all four. However, the court saw that the deadline also benefitted Frye and Morgan (who essentially guaranteed the lease) because they had signed on for the original term, but would not necessarily want to be on the hook for rent any longer. As the deadline requirement benefitted the other parties, Kavin the lessor could not unilaterally waive it.

The court concluded that, when Kavin had Andrea write out & sign an exercise of option, the lessor was making a new deal with only Andrea. The rest of the tenants were not involved in the new agreement, the old rental agreement was concluded, and only Andrea had to pay rent. This case points out several things common about options- that tenants sometimes do not really read their lease or believe the formal requirements are necessary, landlords sometimes cut corners to keep a tenant in place, and co-tenants really need to pay attention to what is happening with their lease at all times.

California Commercial Leases & Covenant of Quiet Enjoyment- Tenant Can Waive the Covenant, So They Better Read The Lease.

February 17, 2012

Every California lease includes a covenant of quiet enjoyment. It protects the tenant from any act or omission which interferes with the tenant's right to use and enjoy the property for the purposes contemplated by the parties. The recent decision of Fritelli, Inc., v. 350 North Canyon involved a tenant who did not closely read the lease, and was surprised that they waived the covenant of quiet enjoyment. Unlike California residential rental agreements, commercial lessees can modify or waive the covenant of quiet enjoyment; most form leases have a waiver built in. Property owner / lessors and potential lessees concerned with the issue should consult with an experienced Sacramento, Yolo, or El Dorado real estate attorney to discuss the language in their agreements.


Fritelli entered a lease to operate a doughnut shop in a shopping center. The lease guaranteed the tenant "quiet enjoyment." However, other provisions provided:

a. The lessor was granted authority to renovate the center, limiting liability for damages, and providing reduced of rent to the extent the use of the premises was impaired;

b. That, notwithstanding the lessor's negligence or breach, lessor was exempt from any liability due to conditions of the premises;

c. Lessee was required to maintain insurance, and lessee's sole recourse in the event of damages or injury was to file a claim on their insurance policy.

The doughnut shop was in business, and renovations of the shopping center began. In the ensuing lawsuit the lessee complained that scaffolding preventing customers from seeing and entering the shop, and dust and dirt entered the store every day, and that the business declined.

The court first noted that, in a commercial context, the tenant may agree to limit the scope of the covenant of quiet enjoyment. This was titled a "net" lease, which usually means that "the parties intended to transfer from the lessor to the tenants the major burdens of ownership of real property over the life of the lease." It then reviewed the provisions of the lease, and found that the parties' intent was to exempt the lessor from liability for breach of the lease and ordinary negligence. Specifically, the provision which allows remodeling without claims for damages modified the covenant of quiet enjoyment.

Interestingly, the court pointed out that nothing in the lease language limits the exemption from damages to the limits or forms of coverage of insurance available. So, the tenant could have uninsured harm caused by the landlord, but be stuck with the loss. Lastly, the court found that, in this context, the limitations of liability did not need to be printed in bold or large type or distinct from other contract provisions, unlike releases contained in recreational activities. This is a case where the lessor had tough terms in the lease but did all they could - they had a cleaning company in daily to clean the doughnut shop during construction, and reduced the rent. The court was not sympathetic of the tenant who did not read their lease before signing.