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Next to the question of rent, often the most hotly contested lease provision is use of the leased premises by someone other than, or in addition to, the tenant. If a tenant wishes to transfer its interest in the entire leased premises for the entire term, that is an assignment of the lease. If the tenant wishes to transfer its interest in a portion of the premises, or for a period of less than the entire lease term, that is a sublet.
If a tenant seeks to assign or sublease, is the landlord’s consent required, and if so, what is the standard for consent? If this issue is not addressed in the lease, the tenant has a right to assign or sublease as a matter of law. If the lease states an assignment is prohibited, it does not prohibit sublease.
Assignment should be defined. Does it include a transfer of shares of stock? This is not prohibited by a restriction against assignment, unless this is stated in the lease.
The tenant should ask that the landlord’s consent not be unreasonably withheld or delayed. The tenant may wish the right to assign or sublease without consent in some circumstances, for example, to a related company or in the even its business is sold. Restraints on assignment are not favored.
In case of a sublease, the landlord may wish to restrict the number of subtenants. The landlord may desire that the lease require reimbursement for attorneys’ fees in the event the landlord requires its attorney to review the proposed assignment or sublease. As a condition of its consent to assignment or sublease, a landlord may typically want the option to recapture the premises or any profits from the assignment or sublease. The tenant may ask to share the profits.
If a tenant is looking to be released from liability after an assignment of its interest in the lease, the landlord should consent to that release in writing.
For further information on understanding commercial leases, please contact The Rodriguez Law Firm at (212) 292-4233 or email us at info@lawrodriguez.com. Please visit us at http://www.lawrodriguez.com.
We concentrate our practice in the areas of Business/Corporate Law, Commercial Litigation, and Real Estate. We are essentially a “one-stop shop” for all the legal needs faced by entrepreneurs and business owners. Our firm’s mission is to help level the playing field for the small business community throughout the New York City Metro area. You may reach us at (212) 292-4233 or info@lawrodriguez.com. Please visit us at www.lawrodriguez.com.
The construction contract is a useful document that spells out the details regarding entering into a contract for construction purposes.
There are certain features that need to spell out in each construction contract which should cover the salient points and help form an effective agreement between the concerned parties. Depending on the nature of different contracts some features may be applicable while others may need adding. However, some of the salient points that should be included in the construction contract are identities of the parties, recitals, obligations of the parties, terms of the contract, price, payment terms, representations and warranties, liability and termination of contract.
The identity of the parties should include the name, type of entity of each party (e.g. Corporation, LLC etc.), and addresses. The recitals should include the background of the agreement, purpose for entering into the contract, and key assumptions of the contract. The obligations of the parties should include what is each side required doing, when should the construction be completed and if something needs to be delivered whose obligation is it to and at whose cost. The terms of contract should include defining whether the contract is a one-off one or will it last for some fixed time and how can the terms be renewed or extended.
The price should be defined as to what is to be paid for the product or service, whether the price determined by fixing it through a formula or by project fee or by some other manner. The payment terms should spell out when is the payment due, installment payments to be made, interest to be charged, and any penalty levied for late payments. The representations and warranties should specify what representations and warranties are to be made by the parties, certain warranties disclaimed, and how long the warranties are valid.
The liability clause should define what limitations of liability exist and under what circumstances one party is liable. Finally, the termination of contract clause should state when one party can terminate the contract early and what would be the consequences of such an act.
With regard to construction contracts there are certain other clauses that need to be enumerated, including: performance of work by contractor, differing site conditions, site investigation and conditions affecting work, physical data, material and workmanship, superintendence by the contractor, permits and responsibilities, and other contracts. The construction contract is the one key document that the contractor must consult each and every day. So, it follows that the construction contact be drawn only after adequate study and detailed discussions. It should definitely specify payment terms, contract documents like specifications, drawings, addendums etc., the authority or who the owner’s representative is, change orders because almost all contracts need changes to the order for work, and finally, the schedule for work which may include the time that has been planned to complete the work.
The construction contract is an important document which can be purchased on the market for low cost and which will contain all the vital information regarding the construction contract and which can also be tailored to suit individual needs.
Wade Anderson is a CPA and operates DigitalWorkTools.com. Click to view a Construction Contract
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