For many landlords, negotiation of a lease
termination agreement is a better option than simply allowing a tenant to desert
the premises and return the keys to the property manager. Without a termination agreement, the landlord
is left in the unfavorable position of having to file a lawsuit to obtain a
judgment for money damages. In Virginia,
if the landlord takes back the space after the tenant deserts the premises (i.e.
the landlord does not sue for possession of the space), the landlord may be
forced to file its lawsuit in the more expensive Circuit Court to recover a
judgment for damages. In addition, many Circuit
Court judges are unwilling to award damages for rent that would be owed through the
expiration of the lease term, if that date is in the future.
On the other hand, negotiating a lease termination
agreement allows the landlord to: (a) receive a “termination fee”; (b) set a
firm move-out date; (c) obtain a full release of any claims the tenant may have
against the landlord; and, (d) reinforce or amend lease provisions on such
issues as the security deposit, repairs to the premises, and the disposition of
property left at the premises. If the
termination agreement is artfully drafted, the landlord can strengthen its
legal position and reserve all of its rights under the lease. Thus, in the event the tenant breaches the
termination agreement and the landlord is forced to file a lawsuit, the
landlord’s case will be stronger than a case based on the lease alone, and
irritating counterclaims will be less likely (or even precluded).
The landlord should take several factors into consideration when negotiating the “termination fee”, including but not limited to the following: (a) the financial strength of the tenant and its parent companies, if any; (b) whether or not there are personal guarantors of the lease; (c) the length of the remaining term of the lease; (d) the presence of any viable counterclaims against the landlord; (e) the out of pocket costs the landlord has incurred to improve the premises; and (f) the likelihood of re-letting the premises. In many cases it will be necessary for the landlord to review the tenant’s (and any guarantor’s) financial statements.
Lease termination agreements may prove to be
useful in a variety of situations. Our
attorneys find them particularly useful for tenants who have little to offer
the landlord. With these tenants, it
makes more economic sense for a landlord to get something while the tenant is
prepared to make an offer, as opposed to filing a lawsuit and trying to collect
on a judgment that is likely not collectible.
In our experience, landlords do not have great success collecting money
from this type of tenant after securing a judgment. By the time the judgment is secured, the
tenant has no incentive to pay the landlord, has probably paid other creditors
in lieu of the landlord and may even file for bankruptcy. Of course, the landlord should always make an
informed decision and request financial records from a tenant that is pleading
poverty.
Many landlords are opposed to the idea of
negotiating an early lease termination.
They would rather obtain a judgment from the Court than another written
promise from the tenant. And, there certainly
is risk involved with a lease termination agreement. However, every situation
is unique and the landlord should undertake an informed cost/benefit analysis to
determine the best course of action.
When negotiating a lease termination agreement, it
is important that the landlord consult a knowledgeable attorney throughout the
process. An attorney can draft
provisions which protect and reserve certain rights of the landlord without weakening
the landlord’s legal position. The
agreement should also make it easy for the landlord to obtain a judgment in the
event of a default by the tenant (such as by execution of a consent order or
confession of judgment). These provisions
can be tricky, so it is important that they are properly drafted and
incorporated into the lease termination agreement.
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