AboutJim Avancena Expertise I am best qualified to answer any questions that involve commercial leases, the complexities and inter-relationships of the myriad provisions that a lease may contain, and explain how they commonly effect a landlord or tenant in their day-to-day business operation. I can explain most matters that will come up during of the full lease cycle from standard industry practices regarding the lease acquistion process, concerns related to remodeling/improving the leased premises, moving-in, subletting or assigning the leased space, and a long list of other problems that may come up during the lease term. I have practical experience with most property management issues and resolving landlord and tenant disputes. Note that I am not an attorney and cannot provide legal advice.
Experience Twenty-eight years active experience in the commercial real estate industry as a licensed real estate broker in the Washington DC Metro area(DC, Northern Virginia & Maryland). I have been admitted (approved) by the Maryland and DC courts to testify as an expert witness on the subjects of Commercial Leasing and Property Management in the area of standard industry practices. I have had a business for the last 14 years advising virtually every form of business entity from large national corporations to the smallest ma & pa new businesses regarding a wide range of commercial real estate matters in addition to property management and commercial leasing.
Organizations Currently my three children keep me so busy that it is difficult to find time to participate in organizations.
Publications I publish a local commercial real estate newsletter titled: "Tenants First". My firm was the subject of a high profile Washington Post business section cover page (2.25 page)feature story on January 13, 1993; "Overcharging Overhead".
Education/Credentials BA in Political Science from Memphis University, and five years of study in the real estate development summer program at MIT. I was certified as a commercial property manager (CPM-IREM), and currently hold a brokers license licensed in Maryland and the District of Columbia.
Awards and Honors Routine, the same plaques and honors that most others in my industry have earned, none that are significant.
Past/Present Clients Past clients include: The World Bank, George Washington University, National Association of Criminal Defense Attorneys, US Department of Commerce, The American Benefits Council, K-Mart Development, many law firms, a national union, other major organizations, and many, many small business firms and retail operators that I am most honored to serve. I estimate more than 1,500 firms/organizations.
Question We have a commercial lease that ends on Nov. 30, 2009 in which case due to a fire in an adjacent building we chose to close the business. We lost all of our inventory due to smoke damage and the clean-up took a few months so the business was closed from July 10, 2009 thru September. Fortunately, we have insurance so we continued to pay rent during this time. However, since our lease was up at the end of November we decided to close the business and therefore gave notice to the landlord. It was agreed with the landlord if he found another tenant he would release us from our lease obligation once the space was occupied. On Sept. 30, 2009 we cleaned the space, re-painted, and moved our stuff out (except our desk and lighting fixtures). On October 1, 2009 the landlord moved his stuff in such as a filing cabinet, boxes, table, and posters into the space. We did not give him permission to place anything in the rental space. To make matters worse he gave the key to a third-party to move in artwork, in which case the landlord is allowing this artwork to be sold in the space. Also without our knowledge the landlord changed the lock on the door so we now do not have access to a space we are entitled to and being charged rent.
When we confronted the landlord he claims he's "staging the space" with the artwork so he can rent the space which clearly is not the case as this art gallery is open to the public and artwork is being sold for profit. Unfortunately, I can't afford to get an injunction to have this third-party removed and the landlord has ignored our requests to vacate the space. He has just given us a letter on 10/16/09 stating that he's taking possession of the space to re-let the premises acting as an agent on our behalf in which case this was never discussed or agreed upon.
He's treating us as if we have defaulted on our lease or abandoned the space which is clearly not the case. For three years, we have been good tenants and have paid our rent on time. Unfortunately, we rent two spaces from this landlord so it's unclear why he's doing this. Also on a side note, when we stated our personal belongings were still in the space such as the light fixtures and desk he stated that this property now belongs to him. These light fixtures are removable pendant lights we installed to highlight our products. In which case, I thought they were considered "trade fixtures." My understanding is these "trade fixtures" do not become his property unless left by the tenant after the lease has expired. Our lease has not expired but how are we going to collect our belongings if we are locked out? Another point is, we never handed over our keys, or did a final walk through, nor signed paperwork ending the lease. Without a walk through, how do we collect our security deposit? The security deposit is for $4600 which I'm afraid he will not pay us considering his actions to date.
What are our legal rights at this point? Does the landlord have the right to do this?
Answer Brenda:
There is much information in your question, however, there are a massive amount of important details missing that will be critical in determining what action you should take at this point.
I suggest you immediately contact an attorney in your area that specializes in landlord / tenant law ("L & T"). I cannot give you legal advice because I am not an attorney.
You need to be specific about the following:
1.) You state that you "decided to close your business and gave notice to the landlord". Did you give the landlord legal notice as described in your lease? For instance did you send notice via Certified Mail and get the green card returned proving he got your notice? Did the landlord send you anything in writing that responded to your notice?
2.) You state that: "It was agreed..." Are the SPECIFIC TERMS of that agreement in writing and did both the Tenant and Landlord execute the agreement? Please don't say that this "agreement" was NOT in writing.
3.) You state that your agreement includes that: "...if he found another tenant he would release us from our lease obligation once the space was OCCUPIED". I hope these terms are in written form and does the agreement use the word "occupied", or does it say "leased "? Landlords don't usually choose "occupied" in this situation; normally they use "leased" and then they give many details to qualify this phase of the process.
4.) If the landlord does not have a subsequent WRITTEN agreement with you, I would be quite concerned about the key to your premises being given to another vendor and someone now selling retail products in the space.
5.) You state that the Landlord "has ignored your requests". Again, have you notified your landlord by certified mail of your requests or however your lease specifically instruct for formal "notice?"
6.) What specifically gives your landlord the right to say that "the property (I assume you mean "the premises") now belongs to him?" Does he maintain this right based on your new written agreement or is it some rights from your initial lease?
7.) Does your lease provide procedures regarding how fire damage will be handled by you or by your landlord? Most leases indicate how both parties will respond after a fire and give specific times for when each party shall do what the lease states they will do? Is this the case with your lease? Did you and your landlord act as specified regarding a fire in your lease?
What kind of "inventory" do you have that was destroyed by the nearby fire? How far was the actual fire and smoke from your premises? If your damage was significant it might have been wise for you to engage a specialist to help you with your claim. Often their fee is covered by your insurance coverage.
I can only assume that if the landlord has changed the locks on your former space that such action - also known as "SELF-HELP" - is legal in your jurisdiction. It is not legal in many areas of the country EVEN IF IT IS INCLUDED IN WRITING IN YOUR LEASE. You need to contact the local court office to discover if the locks can legally be changed as your landlord has done(they may not know the action as "Self-Help" depending upon who answers the phone) and is legally acceptable for a landlord to do in your area. Do this right away. Given your report of the agreement that you seem to have with your landlord, it doesn't follow logically that the landlord would lock you out. Something is wrong in this situation.
Your security deposit is likely addressed in detail your lease, however, if you have executed another agreement about your firm leaving the space earlier that the last day of the initial term it would seem likely that your security deposit would be a prominent issue that would be addressed in that new agreement. Is it?
Finally, this is a matter that an attorney with landlord/tenant legal experience should be handling for you. Whatever else you do, be certain to keep DETAILED notes with dates and the actions on how this matter progresses, and be certain that every word that you want to communicate to your landlord is communicated as specified in your lease regarding "Notice".
If you cannot afford an attorney, contact your local Bar Association and ask if they have any attorneys available that provide Pro Bono legal assistance. If so, make an appointment immediately to to learn what you should do to resolve this matter.
Please send a follow-up question if you please, however, I suggest you focus on finding an attorney to help you immediately. Keep me updated on this matter.
