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 I hope you can help out. Tenant rented a commercial property from Landlord. Tenant sublet property with landlords ok and subletter failed to pay rent and abandoned property. Landlord is pursuing Tenant for rent owed through October. Landlord entered property in August and changed locks, painted, etc... Do they have a right for rent from August through October? Is there a case or law that supports it either way?
Answer Andrew:
I will tell you what I can to help you with this situation. I am not an attorney and cannot give legal advice, additionally, the laws in each jurisdiction throughout the United States can differ dramatically in the way they address the issues involved in this situation. You will need to discover the local law in these regards with an attorney or judge in your area.
Your question involves two concepts that are commonly involved with commercial leasing, but both are highly dependent upon how the law deals with both matters in your particular jurisdiction.
"Self Help", or "commercial lock-out" describes a landlord's right to come into a vacant space that is under lease and change the locks as well as do other things like move everything in the premises out, WITHOUT having to go to the local court first to ask for permission to do so. Usually this is done when the landlord decides that the tenant is in violation of its lease terms - usually when the landlord determines that the tenant is behind in its rent payments. "SELF HELP" is not legally permissible in many areas of the country. Sometimes you will find that even if the lease stipulates that the landlord may exercise Self Help, it is not a legal practice in the area. You will have to check with the local courts.
Additionally, most areas recognize that the landlord also has a responsibility to "MITIGATE DAMAGES" when a tenant or sub-tenant vacates the premises while it is still under lease. This means that in spite of defaulting on the responsibilities the tenant had under the terms of his lease agreement, the landlord must still make reasonable efforts to rent the premises again as soon as possible to limit the amount of losses that the landlord incurs on the vacant space.
To answer your formal question, the original lease between the landlord and tenant probably contains a very common lease provision stipulating that the original tenant remains liable for the payment of rent even if the landlord agrees to a sublease for the space; the landlord does have a right to the rent that was agreed to under the terms of the original lease with the tenant - the rental terms of the SUBLEASE are not involved in the amount of the landlord's rent recovery.
Note however that although the landlord's right to recovery of the original rental is still in effect until the original lease term expires, the requirement of the landlord to mitigate damages still supercedes his right to collect the full amount of rent through lease expiration. Recognize that the landlord and tenant will likely disagree as to what defines the "reasonable efforts" a landlord must take to get the premises rented again and mitigate damages. Realize that mitigating damages includes the cost to repaint the premises, make any repairs necessary, advertise the space for lease etc., and all those expenses will likely be included as part of the landlord's claims for rental losses. That is a matter that a judge or jury will have to determine in court.
I have indicated some of the most common commercial leasing practices regarding the situation you have described and it is likely that attorney's and lease practitioners you may talk with will be familiar with all of these practices. Remember that the local law could not accept one or all of these practices.
