Category Archives: negotiating new office lease

What is a “Green” lease?

A “green lease” is one that seeks to encourage sustainable practices by both the landlord and the tenant and to remove disincentives to increased recycling, reduced raw material, energy and water consumption, as well as the use of sustainable materials in tenant improvements.  Ensuring that tenants and landlords are required or strongly encouraged to adopt environmentally friendly practices is the purpose of such a lease.  One commercial landlord oriented green lease* states its objectives this way:

 

The Tenant acknowledges the Landlord’s intention to operate the Building so as to provide for:

 

(a) a comfortable, productive and healthy indoor environment;

(b) reduced energy use and reduced production, both direct and indirect, of Greenhouse Gases;

(c) reduced use of potable water and the use of recycled water where appropriate;

(d) the effective diversion of construction, demolition, and land-clearing waste from landfill and incineration disposal, and the recycling of tenant waste streams;

(e) the use of cleaning products certified in accordance with EcoLogoM (Canada), Green SealTM (United States) or equivalent standards;

(f) the facilitation of alternate transportation options for individuals attending at the Building; and

(g) the avoidance of high volatile organic compound materials, furniture and improvements within the Building and individual tenant premises.

 

The lease goes on to specify how this is to be done, the related responsibility of each party, the metrics and methods to measure compliance, the allocation of related costs, and how it is to be enforced.

 

*  The lease, entitled “REALpac National Standard Green Office Lease for Single-Building Projects – 1.01 – 2008,” was developed by the Real Property Association of Canada, and can be seen in its entirety at

http://designersi.com/users/12415/downloads/NSGOL_Single_

Version1.01clean_Released01June08.pdf”.

 

            COMING NEXT: How do most leases now discourage being green?

 

With over 35 years experience Stu Heller helps his clients understand and improve their business and real estate transactions.  His blogs on leasing can be found on Blogspot, WordPress, Squidoo and Hubpages, and his “Superb” attorney rating and profile on AVVO.com.  He is an allied member of the Washington Restaurant and the Washington State Hotel & Lodging associations as well as a member of the King County Bar associations.  Contact him for a free initial consultation or to get his Legal Tips emailed to you or others you work with.  Be sure to consult your lawyer before applying any of the above to a particular situation.  Contact info:  Stuart A. Heller, 1325 Fourth Avenue, Suite 940, Seattle, WA 98101, 206-623-0579, fax 206-682-7972, heller@theleasinglawyer.com, hellerlaw@aol.com, www.theleasinglawyer.com.  ©2009, Stuart A. Heller, all rights reserved.  

Why Do You Want A Broad Right To Assign?

Mr. Jones’ company is bound by an agreement that is vital to the operation of his business.  It could be a space or equipment lease, or some sort of financing, supplier or service agreement.  The agreement says that its transfer or assignment is prohibited or permitted only with the other party’s approval.  Consider these situations: (i) his business is doing very well and he wants to sell it or its assets while they are most valuable, (ii) his business is doing poorly and he wants to get out by selling it or its assets, (iii) for accounting, management or other purposes he wants to transfer the agreement to another company he owns, a subsidiary or parent company, or to merge his company with another, or (iv) he wants to bring in a few other investors or take his company public. 

 

In all these cases Mr. Jones’ ability to transfer the agreement can be a critical factor in whether he succeeds.  A buyer might not be interested in the company or its assets if it cannot take advantage of the agreement.  The other transfers might not be possible if the agreement labels them as prohibited assignments or as ones requiring the consent of the other party, either of which occurs frequently in agreements proposed by the other party.  Unless these issues are properly dealt with during negotiation of the agreement Mr. Jones could have a big problem.  What could he have done? 

 

One solution would have been to define some of some of the activities as not included in the definition of “assignment.”  This can sometimes be achieved for transfers to a parent or subsidiary of Mr. Jones’ company, transfers that do not result in a change in the control of his company, or for transfers to or a merger with a company owned or controlled by Mr. Jones.

 

Another solution would have been to set criteria which if met by the intended transferee would permit the transfer without first having to obtain the other party’s consent.  An example would be where the transferee has a specified net worth or at least a net worth greater than Mr. Jones company’s at the time of the transfer, and also has a specified number years of experience in Mr. Jones’ company’s business.  Satisfying these criteria could provide comfort to the party on the other side of the agreement that it will be doing business with a responsible and qualified replacement for Mr. Jones.

 

Even if the desired transfer is allowed Mr. Jones could still be concerned about whether his company will remain liable for his replacement’s compliance with the agreement.  That will be the subject of one of my future Legal Briefs.

 

With over 35 years experience Stu Heller helps his clients understand and improve their business and real estate transactions.  His website is at http://www.theleasinglawyer.com. He can be reached at 206-623-0579 and hellerlaw@aol.com. Contact him for a free initial consultation. Be sure to consult your lawyer before applying any of the above to a particular situation.