Real Estate Law Alert – May 2024

Categories:

THE IMPORTANCE OF IDENTIFYING THE PREMISES

One of the most basic, yet very impactful, provisions of a commercial lease is what exactly constitutes the “premises”. Generally, a lease is required to identify the premises with enough detail that a court can enforce the overall lease. The description of the premises often affects a variety of lease provisions, such as:

  1. liability for acts occurring on the premises;
  2. computation of square footage for rent purposes;
  3. maintenance and repair obligations; and
  4. ability of the landlord to grant conflicting rights which could interfere with the interests of the tenant.

The square footage actually described in the lease can be deemed controlling, regardless of its accuracy, unless the tenant has the right to remeasure the premises. There is some case law in Ohio, however, which allows a tenant to overcome such a lease stipulation, even where it has not reserved a right to remeasure. In fact, if a tenant acts promptly upon discovering such a discrepancy, it may be able to rescind the lease under certain circumstances.

In sum, it’s critical to get both the identification of the premises and its accurate square footage right at the outset of a leasing relationship, if at all possible. It is difficult to overstate the importance of these issues, especially from a tenant’s standpoint.