How current events impact business & real estate

Monday, November 28, 2011

Lease Renewal Notice Provision not to be Strictly Construed

In a recent controversial case in Manhattan, 135 East 57th street v. Daffy's Inc., the Appellate Division ruled that a tenant's failure to provide their landlord with a timely notice that they wished to renew their lease did not foreclose the tenant's ability to renew nonetheless in the face of the landlord's desire to evict.

The Court ruled that regardless of the terms in a lease, equity or fairness could trump the parties agreement. Specifically, the Court stated a test for the tenant to exercise the option even where it failed to notice the landlord pursuant to the terms of the lease. The test is: (1) The landlord was not prejudiced by the delay in notice; (2) The delay was excusable; and (3) The tenant created value (which can only be for the tenant's behalf) in the premises or had made improvements to the premises

This is a scary decision for landlords who rely on the terms of their agreements to make proper business decisions. In the wake of this decision, landlords should assume that a tenant's failure to renew by notice is not grounds to evict. Instead, the landlord must now go the extra step of getting confirmation that the tenant wishes to vacate in order to have a reliable working premises for their property. Basically, the Court puts the burden on the landlord for determining the tenant's intent to not renew regardless of the agreement of the parties. While its always been a residential tenant's world, it appears that the commercial tenant is not falling far behind in default rules in its favor. Landlords beware.

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