Sunday, November 15, 2009

Tenant Protection - Non-disturbance clause

One concept that has often gone unnoticed in leases is a non-disturbance clause or agreement. It benefits the tenant in case of a lender foreclosure on the property or premises they occupy. The agreement is between a tenant, a landlord, and a landlord's lender.
-The tenant agrees: His/her interests in the premises are subordinate to the lender's interests.
-The lender promises: If there is a default by the landlord on the mortgage, the lender will honor the terms of the lease and not disturb the tenant, so long as the tenant is not in default.
Should a lender foreclosure take place without this clause in place, the tenant would be at the mercy of the lender. The lender could demand new terms (i.e. higher lease rate, increased lease escalations, removing or altering lease extensions, etc).
Given our current environment, this clause is becoming an increasingly important protection for the tenant and one to ensure is in your current lease and future lease agreements.