Product Description

Recent updates:

• Update: August 2023

  Dear Subscriber:

  Thank you for choosing to stay current in commercial lease drafting with this 2023 edition. Inside, you will find updated material on a broad spectrum of topics that you will likely find to be of interest, such as these:

  • Defective landlord title and estoppel. See chapter 1 for a recent cite to a case stating that, although the general rule is that a tenant cannot challenge a landlord's title in a summary process action, an exception applies where property was purchased at a foreclosure sale.

  • Federal prohibitions on doing business with certain persons. Chapter 1 also discusses Deutsche Bank Trust Co. Ams. v. Dumeus, 2022 Mass. App. Div. LEXIS 6, *6, 2022 WL 4232719 (although the general rule is that a tenant cannot challenge a landlord's title in a summary process action, an exception applies where property was pur-chased at a foreclosure sale).

  • Trustees' authority to lease. Chapter 2 warns that trustees should be careful to include exculpatory provisions in leases they execute, denying personal liability and limiting all liability under the lease to the trust estate. The chapter also provides specific language that should be used to clearly limit trustee liability.

  • Rights conferred in a tenancy at will. Chapter 3 mentions notice requirements that adhere to the situation where a tenant and landlord are party to a housing assistance payments contract where the tenancy is at will and pro-vides cites to the applicable statute as well as to a recent decision.

  • Acceleration for nonpayment. Chapter 6 discusses a recent Appeals Court ruling where an acceleration clause "bears no reasonable relationship to expected damages and is thus unenforceable as a penalty." The case is with the Supreme Judicial Court at the time of this publication.

  • Use and repair; tenant's obligations. Chapter 7 includes discussion of the situation where premises consist of a building that has covenants relating to use and repair, and whether it is reasonable to require service or maintenance of a sprinkler system by the tenant. The discussion distinguishes this scenario from others involving requirements that the tenant use, maintain, and keep in good order in compliance with the law and addresses the prospect of unanticipated obligations on the tenant's part with regard to expensive systems.

  These are only a few of the issues addressed in this 2023 revised edition, which we trust you will find useful in your real estate leasing practice and valuable in your law library collections.

  Cordially,

  MCLE Press

• Update: September 2020

  Dear Subscriber:

  Thank you for updating your reference library with this first supplement to the fourth edition of Lease Drafting in Massachusetts. This update features new developments, analyses, and practical tips on a spectrum of commercial and residential lease drafting topics, including the following:

  • Novel commercial leasing arrangements. Please find a new chapter dedicated to new leasing configurations surrounding trending business environments, including solar energy facility leasing; food hall licensing; and agreements for coworking spaces.

  • Nominee trusts as trust entities versus disregarded entities. Chapter 10 recounts a recent (2019) appellate court decision that has clarified the issue as to whether a right of first refusal applied to transfers of the beneficial interest in the trust as well as to transfers of the record title to the property, itself.

  • Ground leases and space leases. See Chapter 11 for a new, detailed discussion regarding differences between "space leases" and "ground leases," addressing such issues as the responsibility to insure, rent abatement, subordination of the fee, leasehold financing, and many other topics.

  • Security deposit. See a new discussion, in Chapter 13, citing a case in which the Supreme Judicial Court provided clarification as to which violations will trigger treble damages under the statute pertaining to security deposit return.

  We at MCLE trust that you will find this new edition useful in your real estate practice, and valuable in keeping your law library current.

  Cordially,

  Maryanne G. Jensen, Esq., MCLE Director of Publications

• Update: March 2017

  Dear Subscriber:

  Thank you for updating your reference library with this fourth edition of Lease Drafting in Massachusetts. This edition features new developments, analyses, and practical tips on a spectrum of commercial and residential lease drafting topics, including the following:

  • Fitness of premises for tenant's use. See chapter 4 for a discussion of an expanding trend to view commercial leases more like contracts for the occupation of useful space and less like the common law concept of leases as conveyances.

  • Automatic extensions. See chapter 5 for discussion of a 2017 Appeals Court reversal in a case where a lease provided for automatic extensions unless either tenant or landlord served written notice to the other of that party's option not to extend, the landlord brought a declaratory judgment complaint alleging that the tenant had not properly exercised its option not to extend.

  • Holdover. Also see chapter 5 for commentary on a decision holding that a tenant who failed to exercise a right of renewal and was allowed to continue to operate under the same lease terms notwithstanding his failure to exercise the option had become a tenant at will.

  • Fire and casualty insurance. See chapter 8 for a warning to commercial property owners regarding conditions precedent to coverage and exclusions to coverage contained in their property insurance policy and any endorsements, in particular the so-called Protective Safeguard Endorsement (PSE).

  • Criminal history of tenant. See chapter 13, which discusses HUD’s Office of General Counsel's guidance issued April 4, 2016 relative to the Fair Housing Act and landlords using criminal history as a basis for denying applicants for housing.

  We at MCLE trust that you will find this new edition useful in your real estate practice, and valuable in keeping your law library current.

  Cordially,

  Maryanne G. Jensen, Esq., MCLE Director of Publications

Table of Contents

Chapter 01 expand

Formal Aspects of Leases

Buy Chapter

Edward M. Bloom, Esq.,
Gary D. Buchman, Esq., Sherin and Lodgen LLP

Exhibit 1A

- Letter of Intent Buy Form

Exhibit 1B

- Lease Language Pertaining to the Office of Foreign Asset Control (OFAC) Regulations, and Anti-Terrorism Act Buy Form

Exhibit 1C

- Notice of Lease Buy Form

Chapter 02 expand

Parties and Power to Lease

Buy Chapter

Geoffrey A. Howell, Esq., DLA Piper
Adrianne K. Zahner, Esq., Mintz Levin Cohn Ferris Glovsky and Popeo, PC

Chapter 03 expand

Rights Conferred on the Tenant by the Lease

Buy Chapter

Timothy M. Smith, Esq., Nutter McClennen & Fish LLP

Exhibit 3A

- License Agreement for Interior Store in Shopping Center Mall Buy Form

Exhibit 3B

- Commencement Date Confirmation Buy Form

Exhibit 3C

- Sample Clauses Reserving Landlord’s Right of Entry Buy Form

Chapter 04 expand

Use of Premises

Buy Chapter

Michael Holiday, Esq., Holiday Law Firm, PC

Chapter 05 expand

The Term of the Lease

Buy Chapter

Eric M. Labbe, Esq., Dain, Torpy, Le Ray, Wiest & Garner, PC

Chapter 06 expand

Forms of Rent and Related Matters

Buy Chapter

Michael J. Riley, Esq., Dain, Torpy, Le Ray, Wiest & Garner, PC

Exhibit 6A

- Gross Sales Definition and Exclusions and Deductions Buy Form

Exhibit 6B

- Sample Continuous Operation Clause Buy Form

Exhibit 6C

- Sample Provision Compelling Periodic Statements and Landlord’s Audit Rights Buy Form

Exhibit 6D

- Sample Real Estate Tax Provision for Shopping Center Lease Buy Form

Exhibit 6E

- Sample Operating Expense Provision for Office Building Buy Form

Exhibit 6F

- Sample Provision for Damage by Fire or Other Casualty Buy Form

Exhibit 6G

- Sample Provision for Taking by Eminent Domain Buy Form

Exhibit 6H

- Sample Tenant and Landlord Default Provisions Buy Form

Exhibit 6I

- Sample Tenant Default Damage Provision Buy Form

Chapter 07 expand

Condition of Premises

Buy Chapter

Peter F. Granoff, Esq., Riemer & Braunstein LLP

Chapter 08 expand

Insurance, Subrogation, and Indemnity

Buy Chapter

Richard Heller, Esq., Sherin and Lodgen LLP

Chapter 09 expand

Transfer of the Landlord’s or Tenant’s Interest in the Lease

Buy Chapter

Alyssa Anderson, Brown Rudnick LLP
Thomas J. Phillips, Esq., Brown Rudnick LLP

Chapter 10 expand

Options to Purchase

Buy Chapter

Peter Friedenberg, Esq.,

Chapter 11 expand

Ground Leases

Buy Chapter

Thomas Bhisitkul, Esq.,

Exhibit 11A

- Sample Ground Lease Use Clause Buy Form

Exhibit 11B

- Sample Ownership of Improvements Clause Buy Form

Exhibit 11C

- Sample Construction of Improvements Clause Buy Form

Exhibit 11D

- Sample “Three Appraiser” Valuation Clause Buy Form

Exhibit 11E

- Sample Casualties Clause Buy Form

Exhibit 11F

- Sample Eminent Domain Clause Buy Form

Exhibit 11G

- Sample Net Cash Flow Rent Clause Buy Form

Exhibit 11H

- Sample Negation of Partnership Clause Buy Form

Exhibit 11I

- Sample Transfer of Ground Tenant Interest Clause Buy Form

Exhibit 11J

- Sample Leasehold Financing Clause Buy Form

Exhibit 11K

- Sample Estoppel Certificates and Landlord Cooperation Clause Buy Form

Exhibit 11L

- Sample Default and Remedies Clause Buy Form

Chapter 12 expand

Impact of Bankruptcy on the Landlord-Tenant Relationship

Buy Chapter

Jennifer V. Doran, Esq., Hinckley Allen LLP

Chapter 13 expand

Special Issues for Residential Leases

Buy Chapter

Kenneth A. Krems, Esq., Krems, Jackowitz & Carman, LLP

Chapter 14 expand

Environmental Matters

Buy Chapter

Jeffrey L. Roelofs, Esq., Law Offices of Jeffrey L. Roelofs, PC

Chapter 15 expand

Novel Commercial Leasing Arrangements in the Current Economy

Buy Chapter

Jennifer Ioli Connelly, Esq., Sherin and Lodgen LLP
Matthew S. Cote, Esq., Goodwin Procter LLP
Beth A. Goldstein, Esq., Sherin and Lodgen LLP

Exhibit 15A

- Sample Form Subordination, Non Disturbance and Attornment Agreement (SNDA) Between Fee Lender and Solar Tenant Buy Form

Editor(s)

Editor Emeritus

Author(s)