Preventing Commercial Lease Dispute Complications with Expert Witness Testimony

Lease Preparation

Contract preparation often requires expertise from commercial lessees and outside consultants. Lessees want to take actions that protect themselves from possibility liability, the imposition of unexpected responsibilities and additional expenses that can be avoided with a reasonable amount of foresight.

One particular provision that an expert witness may recommend is a use and exclusive use clause. This particular provision specifies how the commercial property can be used. Some landlords may not want manufacturing or industrial use on the property. Renters may wish to have broad terms related to the use of the property in the event that they have to adapt to new situations or go after new channels of commerce. Some lessees may want to make sure that they are the only company in the local vicinity to offer the particular type

of goods or service. This is the exclusive use portion of the provision. This will prevent a landlord from renting to another tenant that would be direct competition to the business renting the space.

Some problems can be avoided by strong negotiation in the lease at the beginning of the term. The renter may want to ensure that there are clear maintenance and repair obligations in the lease. The tenant should know when he or she is required to make a repair or what type of maintenance he or she must provide on an ongoing basis.

Another way that an expert witness may recommend protecting the business is by having a renewal option in the lease. A business that does not know that it will be vacated can suffer significant financial consequences as it scrambles to relocate and promote a new location. However, at the same time, a tenant will want to avoid committing to a lease that is too long in case the business experiences any setbacks. The lease should specify the steps necessary to extend the lease. Some extensions may be automatic in nature unless the tenant provides the notice required in the lease.

All provisions related to the financial obligations of the parties should be clearly outlined. There should be no ambiguity in this language or any provisions that provide for a later negotiation of the actual lease terms. Leases may contain specific damages in the event of a breach or the consequences of any particular action or lack of action.

Assignment

In addition to other important provisions, an assignment clause may be included in a commercial lease. An assignment allows the renter to rent out the property or a portion of the property. This can provide some advantages. For example, a renter who comes into financial duress can use the assignment portion of the lease so that he or she is not stuck in a long-term contract with no remedy. However, landlords often want to avoid subleasing as it removes some of their control under the circumstances. A landlord may allow an assignment if the renter starts to get behind in its obligations. The assignment provisions may provide some discretion to the landlord so that the renter does not make all of the decisions that can impact the landlord as well.

Certification of the Case

In some states, the plaintiff is required to provide sufficient evidence in order to bring the case forward. If his or her proof is inadequate, then the court can decide not to accept the case. If the plaintiff cannot make it past this hurdle, the defendant may be at a distinct advantage. An expert witness can prepare an affidavit regarding his or her anticipated testimony to help get past this particular hurdle.

Expert Witness Assistance

An expert witness may be retained as a consultant to explain what provisions should be included in agreements of this nature as well as to explain how certain jurisdictions have held regarding specific provisions. Additionally, an expert witness may provide information during a negotiation so that the other side can understand the strength and importance of this testimony. When hearing the potential testimony, the lawyer may decide that it is in the client’s best interest to negotiate a settlement rather than move toward litigation. If the case does move forward toward litigation, an expert witness can provide important testimony during a trial so that a judge or jury can better understand the circumstances and damages.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.