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Melissa D. Lenhard

Melissa Lenhard’s Answers

296 total


  • I signed the commercial lease to build the dental office. During the construction, another tenant claimed he had the exclusion

    to any other dentist. The landlord made the mistake not review this tenant lease contract. The dentist does not want to settle down, and will request restraint order to stop my construction. Since I am a specialist and not much competition with th...

    Melissa’s Answer

    You have received good advice from all attorney posts. However, there is one item that I would point out in addition to what has been discussed so far: your lease may include a clause that declares you in breach if you violate an existing tenant's exclusive. So, while it is true that the dentist's claim for a violation of the dentist's exclusive use provision would be against the Landlord and not you, it is also possible that the Landlord could terminate your lease if your lease includes language about you not violating other tenants' restrictive covenants. I recommend that you have an attorney review your lease and fully apprise you of your rights and obligations.

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  • Can a commercial landlord withhold portion of a deposit for CAM Settleup?

    I had a 2 year commercial lease and after the first year the building got sold. The new owners made some improvements on the building and increased my rent under "CAM Charges" for the improvements. I paid the rent on time and paid the extra $300 e...

    Melissa’s Answer

    Your lease likely contains provisions for the Landlord to reconcile estimated CAM charges and actual CAM charges on an annual basis (if they estimated that your proportionate share would be $4/square foot and it turns out that they underestimated and your actual share is $4.50/sf, they would charge you the additional 50 cents/sf). It should also specify that your Landlord is permitted to withhold portions of your security deposit for particular purposes. If you don’t see anything in your lease about underpaying CAM Charges or withholding your security deposit you should first ask your Landlord for an explanation, and then seek the advice of a local attorney who can review your lease and fully apprise you of your rights and obligations.

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  • Subletting a commercial property?

    Im subletting a commercial property. I was leasing from the owner he then leased the entire property to one business this business is now my landlord( I pay rent to the business they pay the owner). I have preexisting flooding problem from rain wa...

    Melissa’s Answer

    Under your new arrangement, you have no direct contract with the Landlord. Your contract is with the Sublandlord, so your complaint likely lies with them. Your sublease agreement should define the responsibilities for maintenance and repair. It may indicate that Landlord is responsible for maintenance and repair of the roof, foundation, etc., it may state that Sublandlord is responsible for such maintenance and repairs, or it may simply refer to the Prime or Master Lease (the agreement between the Landlord and the Sublandlord). You’ll have to look carefully at the terms of your agreement to determine which is the case in your situation.

    Once you determine who the responsible party is, you will also need to determine the proper method for communicating your request for repairs. Your Sublease Agreement will specify the proper method for providing notice and reporting problems. Most likely, your agreement will require written notice to be sent via certified mail, return receipt requested. In a flooding situation, you’ll want to call the appropriate party or report the problem in person, but you will need to follow up that call or visit with an official notice in writing. Until such time as you determine the correct party to whom you report such issues, it would be a good idea to cover all your bases by reporting to both the Sublandlord and the Landlord.

    If your review of the Sublease Agreement does not reveal the answers, you will need to take it to a local attorney for review so that you can be fully apprised of your rights and responsibilities under the Sublease.

    I wish you good luck.

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  • Commercial Lease - Time frame for tenant to exercise extension option

    I have a commercial lease with a tenant at my building which was signed for a one year term beginning January 2012 and ending December 2012. The lease states the tenant has one 60-month option to extend the lease, however, there is no language as...

    Melissa’s Answer

    As Mr. Shultz pointed out, it’s impossible to give a definitive answer without having seen the wording of the Lease. That said, it is very unlikely that the option to extend the lease would survive the expiration of the initial term. This assumes the option was not exercised – the lease should have specified what was required to exercise the option (ex. written notice) even if no timeframe was provided. If the tenant did not exercise their option, the lease would have expired at the end of the term prescribed in the lease, which seems to be December, 2012. In that event, if the tenant stayed in the premises after the expiration of the lease, they would be a holdover tenant. Your lease may specifically address what happens with a holdover tenant. More than likely, this provision will create a month-to-month tenancy, though it is possible that the lease would specify that it automatically renews for another one-year term. If your lease does not contain a holdover provision, the default would be to create a month-to-month tenancy. A month-to-month tenancy can be terminated by either party upon 30 days’ notice.

    You’ll have to read carefully through your lease to determine if there are provisions that would allow the tenant to stay for a longer period (possible) or if there is language that would permit the exercise of tenant’s option after the expiration of the term (unlikely). If you can’t find anything in your lease, I recommend that you take it to an attorney for review so that you can be fully apprised of your rights and responsibilities.

    I wish you good luck.

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  • In regards to a commercial lease, my landlord is unreasonably withholding my right to sublease my unit to a qualified tenant.

    I signed a 4 year commercial lease to open a retail store about 2 years ago. The store is not performing up to my expectations so I would like to sublease my unit. The lease clearly reads "The landlord shall not unreasonable hold its consent in e...

    Melissa’s Answer

    Does your lease address both subleasing and assignment? A sublease is not necessarily a “transfer” of your “interest”, since you would still be the tenant under your lease and would still be liable to the Landlord for all of your obligations. A sublease would require you to enter into a separate sublease agreement with the massage business, under which you would be the Sublandlord and they would be the subtenant. An assignment is when the new tenant (massage business) actually takes over your lease and becomes the tenant directly responsible to the landlord for the obligations you agreed to under your lease. Regardless of whether it’s a sublease or an assignment, the Landlord may have denied your request for a number of reasons: change of permitted use, potential violation of existing tenants’ exclusive use, potential violation of existing tenants’ prohibited use or because the proposed use doesn’t fit in with the tenant mix in the shopping center. The most likely reason would be that existing tenants have a prohibition against massage – the antiquated notion of “massage parlors” – despite the prevalence of today’s massage studios that utilize licensed massage therapists.

    One step to try prior to retaining an attorney to write a demand letter, is to send your own letter first. I’m not sure how you presented the idea to the Landlord the first time, but I recommend that you send an official notice to the Landlord, detailing your request for Landlord’s consent to your intended sublease/assignment. If your lease specifies the information Landlord requires as a condition to a transfer, then supply that information. Your lease likely requires all of this to be in writing and should spell out the proper means for delivery (usually via US mail, certified, return receipt requested).

    If the Landlord denies your request, consider talking to the Landlord about an early termination for your lease. The Landlord may have another tenant in mind for the space or could at least begin looking for one.

    I’m sorry that your business is not going as well as you had hoped and I wish you the best of luck in resolving this matter.

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  • Is it okay to backdate a lease to memorialize an ongoing landlord-tenant relationship in a commercial real estate lease?

    I have a commercial tenant whose lease expired a few years ago, but we have a good relationship and he has continued to pay rent under the same terms as the previous lease. I now want to actually have our relationship in writing, as it had been, b...

    Melissa’s Answer

    While I concur with Mr. Tupitza that there is nothing wrong with backdating a lease as you propose (the only parties who could complain are you and the tenant), I don’t see the need to do so. Like Mr. Rothstein, I am not a fan of backdating. I believe what you want can be accomplished via an addendum as previously suggested or by drafting a new lease that references the previous lease and contains the same terms. It is great that you and the tenant have a good relationship, but I applaud your desire to have a formal, written lease to memorialize the terms of your agreement. I wish you on-going good relations and prosperity.

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  • Commercial landlord liable for damages due to delay and false statement leading to belief lease approved?

    3 months negotiating, told landlord settled with former tenant and he signed off on lease I received lease to start Mar 1. Signed/returned. Found tenant never settled, signed off. Using excuse negotiations stopped on my lease as I signed as manage...

    Melissa’s Answer

    A lease is not valid until signed by both the Landlord and the tenant. The tenant almost always signs first, followed by the Landlord. Unless you had a binding letter of intent, which would be very uncommon, the landlord was not required to sign the lease – nor were you. Either party could walk away at any time. Doing so may not be in good faith (especially after lengthy negotiations, and if the tenant signed the lease and paid the necessary deposits and/or pre-paid rent), but it is legal to do so and you are not owed any reimbursement for the costs you incurred in negotiating or planning for the lease. Additionally, the lease is not valid if t signed by an individual without the proper authority to sign on behalf of the entity named as tenant, of if signing as an individual that is not the named tenant. Therefore, the Landlord was correct to return the lease and request execution by the proper individual.

    I’m unclear what you mean when you refer to a settlement with the former tenant. Was there another tenant still in the premises? Even if there were a tenant still in the space, that would not preclude the Landlord from signing a new lease. Obviously, the Landlord could not deliver possession of the premises to a new tenant if the former tenant is still in possession, but a valid and binding lease could still be signed.

    I’m sorry that you are in this situation, but I do not believe that you have any legal remedy against the Landlord for their failure to sign the lease.

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  • Breach of promise or contract if commercial lease sent by landlord, signed by tenant not returned with landlord signature?

    After months of negotiating, writing business plan, obtaining anchor store approval, buying expensive equipment for kitchen anchor required, all equipment from current tenant, turned down another location received a lease from landlord for nightcl...

    Melissa’s Answer

    A lease is not valid until signed by both the Landlord and the tenant. The tenant almost always signs first, followed by the Landlord. Unless you had a binding letter of intent, which would be very uncommon, the landlord was not required to sign the lease – nor were you. Either party could walk away at any time. Doing so may not be in good faith (especially after lengthy negotiations, and if the tenant signed the lease and paid the necessary deposits and/or pre-paid rent), but it is legal to do so and you are not owed any reimbursement for the costs you incurred in negotiating or planning for the lease. Additionally, the lease is not valid if t signed by an individual without the proper authority to sign on behalf of the entity named as tenant, of if signing as an individual that is not the named tenant. Therefore, the Landlord was correct to return the lease and request execution by the proper individual.

    I’m unclear what you mean when you refer to a settlement with the former tenant. Was there another tenant still in the premises? Even if there were a tenant still in the space, that would not preclude the Landlord from signing a new lease. Obviously, the Landlord could not deliver possession of the premises to a new tenant if the former tenant is still in possession, but a valid and binding lease could still be signed.

    I’m sorry that you are in this situation, but I do not believe that you have any legal remedy against the Landlord for their failure to sign the lease.

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  • Non-compete for a massage franchise. Very restrictive. No massage for 1 year of termination. 10 mile radius of 2 locations.

    Any services or facility viewed as competition to the Spa. List 2 Spa locations within Ft Wayne but only have worked in one. Don't know if 10 mile radius applies to both which would preclude me from practicing in Ft Wayne at all! Are they allow...

    Melissa’s Answer

    • Selected as best answer

    Yes, the franchisee is allowed to restrict your post-term competition. While the courts disfavor restrictions on a person’s ability to earn a living, Indiana courts generally enforce non-compete agreements, as long as their provisions are reasonable in terms of the restrictions imposed, the length of time and the geographic scope, and being reasonably necessary to protect the legitimate business interests of the employer. This answer assumes that Indiana law governs your non-compete agreement. If you read through your non-compete agreement and see a Choice of Law provision that states that another state’s law rules the contract, then the remainder of this answer is moot, and the facts must be reconsidered under the laws of the appropriate state.

    Whether you are a potential hire or an existing employee, your employer can require you to sign a non-compete agreement. The only consideration required is either the offer of employment (if you are a new hire) or continued employment, if you are an existing employee. In order to be enforceable, the restriction must be reasonable in terms of protecting a legitimate business interest. In your case, there are not many licensed massage therapists, and a good one is hard to find. The franchisee wants to prevent you from competing against them and taking their customers. That’s a legitimate business interest. It’s likely that the massage studio serves clients as far away as 10 miles, so there is a legitimate interest in protecting itself from you poaching its customers by prohibiting you from competing within that 10-mile radius. If the radius were 50 miles or the entire state, that is overbroad and would likely not be upheld in this case. However, while you worked at one location, if the franchisee owns two locations within the area, it is reasonable for them to prohibit you from competing against the other location as well. Finally, a 1-year prohibition is actually very reasonable. Courts will ordinarily honor restrictions up to 2 years and sometimes more. There was a case in Indiana last year where a judge upheld a 5-year restriction (Mayne v O’Bannon Publishing Co., 36 IER Cases 279 (Ind. Ct. App. 2013)). A 5-year non-compete is certainly beyond the norm, but 1-year is most certainly reasonable.

    All in all, from the details you have provided, and without seeing the entire agreement or knowing all of the circumstances, I can tell you that it seems very likely that your non-compete would be valid and enforceable.

    Your second question is what is your recourse. Realistically, your only recourse is to refuse to sign the agreement. However, in doing so, you will likely either not be hired (if you are a new hire) or you could be fired (if you are an existing employee). The franchisee’s ability to fire you assumes that you do not have an employment contract. Indiana is an at-will employment state. This means that, unless there is an employment contract, an employee can quit his or her job at any time for any reason. Conversely, it also means that an employer can fire an employee at any time without notice for any reason or for no reason at all. The employer can also modify the terms or conditions of employment or terminate the relationship altogether. Your refusal to sign a non-compete agreement would provide the franchisee a reason to fire you.

    This is probably not what you wanted to hear, but I do believe that the franchisee’s non-compete agreement, as you have presented it here, is reasonable and would be enforced by a court. Your recourse is to not sign the agreement and go to work for yourself or another competitor.

    I hope you have found this information helpful and I wish you good luck.

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  • Does a contract have to be notarized in Pennsylvania to be legal in court?

    I am currently in a tattoo apprenticeship where the tattoo artist and myself both signed the contract but we did not have a third party witness sign it. Is this legal or did we have to have it notarized? Also, no where in my contract does it say t...

    Melissa’s Answer

    Contracts do not have to be notarized in Pennsylvania in order to be valid, enforceable contracts. Witnesses are also not necessary. To have a valid contract in Pennsylvania you must meet the following conditions: 1) mutual agreement, 2) competency, 3) legality of purpose and 4) consideration. So long as you and the tattoo artist 1) agreed upon the terms, 2) are at least 18 years old, 3) agreed to something that is not illegal, and 4) exchanged something of value (ex. payment for services), you have a valid contract.

    As for your machines, if the contract does not specifically require you to leave them at the shop, then you do not have to leave them at the shop. You may take them with you as you please.

    I hope this helps. Good luck.

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