Ambiguous provisions in a commercial lease can be very costly to an owner. Clarity of drafting is particularly important for rent escalation clauses.
Recommendations for Drafting a Commercial Lease
Keep it clear. Review your form leases with a critical eye, as a disinterested third-party arbiter would, to uncover potential ambiguities. If there is any conceivable interpretation of an important clause that differs from yours, clarify the language.
Use examples. Sample calculations and examples are excellent for clarifying a concept that may be difficult to follow. Remember, though, that examples are not a cure for poor drafting. They should be used to illustrate how a clause works and to help the reader follow the computation. Do not rely on a clear example to repair a problematic clause.
Get help. After finishing the lease, the landlord*s staff should do the billing, not you. Make sure that they understand the clause, are instructed how to bill it correctly, and concur with you that it is consistent with the landlord*s financial recordkeeping practices. Obviously, this should be done before the lease is signed.
Retain lease drafts to establish intent. Lease drafts can evidence intent. If the court looks beyond the *four corners* of the lease, prior drafts that covered the issue could estop a claimant from taking a variant position.
For more information on this guide, please contact Adam Aldrich at Aldrich Legal, LLC.
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