Finding the right commercial space for your business is critical to your success. Whether it is your first office, a bigger space to accommodate growth, the opening of a second location, or a warehouse to increase inventory, it is in your best interest to lease the space for the right price and under favorable terms.
However, finding a commercial space and a landlord who will accept you as a tenant are only the first steps in the process. For you to legally take possession of the space, you will almost certainly need to sign a commercial lease agreement with the property owner. Whereas residential leases are usually fairly straightforward, commercial leases are anything but; the stakes for your business can be incredibly high.
Common Points of Contention
Every commercial lease is different and disputes can arise involving many different lease terms. The following are several of the most common points of contention in a commercial lease dispute:
Under many commercial leases, tenants may be responsible for paying common area maintenance (CAM) fees. These typically cover maintenance to the various common areas of the commercial property, and sometimes other operating expenses of the landlord. These fees are estimated on a monthly basis and are owed in addition to the base rent. At the end of the year, the landlord will inform the tenant of the remainder owed and there is generally an annual “true-up.” Sometimes tenants will disagree with the landlord’s computation regarding CAM fees and will want to challenge the amount owed.
Maintenance and Repairs
While commercial tenants have the responsibility to conduct general upkeep of their leased space and keep the area in good condition, landlords can also have some responsibility for maintenance and repair. Often, these responsibilities are outlined in a specific lease agreement—and when one party believes the other has breached the agreement, a dispute can arise.
Washington law requires residential landlords to hold security deposits in separate accounts so the funds are easily accessible and identifiable when it is time to return all or part of the deposit. However, there are no such requirements for commercial landlords, who are allowed to comingle deposits with other funds. For this reason, disputes can often arise regarding the return of a security deposit, especially upon early termination of the lease.
In many cases, a commercial tenant may want or need to sublease part of the leased space to cut costs. However, Washington has no landlord-tenant laws expressly giving commercial tenants this right. Instead, the parties need to look to the provisions of the lease agreement.
Many commercial leases include an anti-assignment or anti-subletting clause, which allows the landlord the right to prohibit the tenant from subletting, or to evict the tenant if he chooses to sublet. If the lease is silent on this matter, the tenant can presume he has the right to sublease or assign without the landlord’s consent.
Commercial lease disputes often arise when a landlord claims a tenant has not paid rent as required by the lease agreement. State law does allow a commercial landlord to commence an unlawful detainer action to evict a commercial tenant and recover unpaid rent and other damages.
Various Terms of the Lease
In addition to the above common disputes, commercial landlords and tenants can disagree about many additional terms of a commercial lease. Such provisions can involve:
- How the property can be used
- Lease renewal or extension
- Early lease termination
- Alterations to the space and whether the tenant is required to return the space to its original state
Resolving Your Commercial Lease Dispute
In many cases, a commercial lease dispute can be resolved with careful negotiation. In negotiations, knowledge is power, so in commercial lease disputes, it is often worthwhile to hire an attorney to carefully review your lease agreement. Our attorneys know how to address disputes head-on to facilitate resolutions without unnecessary legal action.
However, sometimes, disputes cannot be resolved through mere negotiation. If a landlord and tenant cannot (or will not) reach an agreement, there are two remaining options: alternative dispute resolution, or litigation.
“Alternative dispute resolution” generally refers to mediation and arbitration, which provide many of the benefits of litigation without some of the costs. In some cases, alternative dispute resolution is a great option to save both parties’ time, effort, and money.
Litigation is the final option. In cases where there are grounds for eviction, an unlawful detainer action is often relatively straightforward. However, if the dispute is over terms of the lease or performance, then litigation can become prolonged, expensive, and uncertain. In complicated matters, litigation should typically be considered a last resort.
Preventing Commercial Lease Disputes Before they Happen
The best way to prevent commercial lease disputes is to understand the lease before you sign it. Unfortunately, many commercial tenants sign a lease without understanding all of the terms they agreed to because they neglect to review the commercial lease with an experienced real estate lawyer. Make sure that you or your lawyer tailor any commercial lease specifically to the space in question and the terms and conditions agreed upon between you and the landlord.
Landlords sometimes try to include terms and conditions most favorable to themselves in leases. If you don’t notice them, and negotiate to have them reworded or excluded before you sign, you may end up facing unexpected costs or liabilities down the road with little or no legal recourse. Reviewing your lease with an experienced real estate attorney before you sign can help do the following:
- Identify any potentially unfair or harmful terms for your business in the lease
- Determine any provisions or wording you may want to alter or add to the lease
- Negotiate more favorable terms to which the landlord will still agree
- Allow you to claim that your lawyer has advised you to suggest changes, potentially giving you more leverage
Commercial leases generally have longer terms than residential leases, so you may agree to certain terms for a few years or more. Your attorney, however, can help you determine:
- Whether you are allowed to alter or renovate the space to fit your business needs and, if so, whether you are responsible for restoring the space to its original condition when you move out.
- Whether you face any restrictions on how you use the space (for example, a bakery would not want a restriction on oven use).
- Whether the landlord will allow any competitors to lease neighboring spaces (for example, a bakery would not want another bakery moving in two doors down).
- Who is expected to pay for maintenance and upkeep of common areas? Does, for example, the landlord cover those expenses or does the landlord expect tenants to split the bill with other tenants and/or the landlord?
- Whether the lease allow excessive or predatory penalties?
While Washington State law sets out some guidelines and protections regarding commercial leases and the commercial landlord-tenant relationship, the parties have the right to bypass many statutory protections through lease provisions. For this reason, when a dispute arises between a commercial landlord and tenant, the terms of the lease are often more impactful than state law.
Contact a Real Estate Attorney for More Information
At Brink Law Firm, we understand how important a positive landlord-tenant relationship can be. We have negotiated countless leases (both commercial and residential) and dealt with many disputes over the years, both for our clients and on our own properties. If you are involved in a commercial lease dispute or anticipate a dispute, call us at 253.620.6666 or contact us online to discuss your legal options.