Don't Let Minor Oversights Give Tenant Right to Terminate

Q The maintenance team at my shopping center occasionally forgets to make very minor repairs. I'm working with them to make sure that they're more diligent about these things. But in the meantime, a tenant is threatening to stop paying rent, and even terminate its lease. It says that I've breached the lease by failing to keep up the common areas as I'm required to under the lease. I've suspected that this tenant wants to move to another property because of financial difficulties. I think it's using my so-called breach of the lease as an excuse to leave my center. How can I obligate future tenants to continue complying with their lease obligations even if I violate mine?

A There is a way to prevent tenants from stopping paying rent or terminating their leases based on your violation. Include a requirement in your lease that tenants pay their rent and comply with all other lease obligations, even if you violate the lease. Without this requirement, a minor lease violation on your part—say, failing to adequately dispose of the trash one time—could lead to arguments and possibly expensive legal proceedings.

If you think that your leases bar tenants from retaliating by not paying rent or even by terminating the lease and moving out of the space, check them again. They may leave you unprotected from this type of retaliation if they don't say that the tenant's lease obligations are “independent” of your lease obligations. So if you fail to perform any of your lease obligations, a tenant could claim—and a court might agree—that the tenant has the right to withhold rent or terminate the lease.

Make the tenant agree that its lease obligations are independent of your lease obligations. That way, if you violate the lease, the tenant can't retaliate by withholding its rent or terminating the lease. To do this, ask your attorney about adding this Model Language to your leases:

Model Lease Language

Tenant acknowledges and agrees that all of its covenants and obligations contained herein are independent of Landlord's covenants and obligations contained herein. Tenant shall neither be relieved from the performance of any of its covenants and obligations (including, without limitation, the obligation to pay Rent) nor entitled to terminate this Lease, due to a breach or default by Landlord of any of its covenants or obligations, unless expressly permitted by the terms of this Lease.

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