Tenant Leasing Illustrated – June 2019 – What Is, Fire Stairs

What’s bigger in pop culture these days than the Avengers and Game of Thrones put together?

Yes, well that is nice of you, but no the answer is not the commercial leasing group at Mintz & Gold (although you were close).

It’s James Holzhauer.

Who?

Mr. Holzhauer is a professional sports gambler who has used game theory and an aggressive betting strategy to rock the world of Jeopardy.

He has achieved the highest single-game payouts on Jeopardy, is only the second contestant to earn more than $1,000,000 in regular-season play and is closing in on the longest winning streak in Jeopardy history.

And since whatever his strategy he needs to provide correct answers to the questions, he also knows a lot of stuff.

How? By reading children’s books.

That’s right. He reads children’s books to gain knowledge since he says they are “chock-full of infographics, pictures and all kinds of stuff” to keep the reader engaged and he admitted “I couldn’t make it through a chapter of an actual Dickens novel without falling asleep.”

No wonder I fall asleep reading commercial leases! No pictures!

Okay, as you might have suspected, I am kidding. I don’t actually read the leases, but if I did, I would certainly nod off mighty fast.

Maybe I can channel my inner Sam-I-Am for future drafting. I will not assign the lease in a box, I will not assign it to a fox, I will not… okay, you get the idea.

It certainly does not take a Jeopardy genius to realize that use of a building’s internal fire stairs for access between floors can be a huge plus for a tenant.

The tenant may not want to build (or be able to afford) an internal staircase between its floors.

Perhaps the tenant has only added on a portion of an additional floor or maybe the tenant’s floors are not contiguous.

What an advantage for the tenant’s employees be able to hop up and down the stairs instead of waiting for an elevator.

I love the stairs, except maybe early in the morning when climbing them out of Grand Central Station – why is it that every year they add one or two more stairs to each staircase?

Since the fire stairs are building common areas, this right of use will not be granted to every tenant and the right will come with restrictions.

This is reasonable since the landlord is allowing use of a common area to one particular tenant, but it is important that the tenant protect itself from landlord overreaching.

I’m quite happy to say, that the Sneetches got really quite smart on that day when they negotiated the right to use the building fire stairs and protected themselves with the following seven suggestions:

  • Oh, the places you’ll go! Your landlord should grant you an affirmative irrevocable license during the term of your lease to use the fire stairs for access between your floors.
  • The license will likely indicate that your use shall be “solely” for access. You may also be responsible for ensuring that your employees, agents and contractors not use the fire stairs other than for access between floors or the emergency use for which it is intended (i.e., no loitering).
  • The license will need to be non-exclusive since others need to access the fire stairs when necessary.
  • I meant what I said and I said what I meant. Your lease should be clear that there will be no additional charge for the use of the fire stairs, although you will be responsible for any additional incremental costs, such as costs imposed by your landlord’s insurance company and cleaning costs for that portion of the fire stairs between your floors if such costs are related to your non-emergency use. Your landlord may impose other maintenance obligations on you (or you may request these as decorative options), such as painting, additional lighting and handrails.
  • From here to there, funny things are everywhere. Your landlord will likely require that your use be permitted by and be in accordance with applicable laws and that you obtain all necessary governmental and regulatory approvals for such non-emergency use. Although negotiable, this is not unreasonable, but you should do your due diligence beforehand.
  • He should not be here when your mother is not. You will be required to comply with any requirements of your landlord’s insurance company and may be required to comply with your landlord’s rules and regulations for such use, but be sure such rules and regulations are “reasonable.”
  • Step with care and great tact and remember that life’s a great balancing act. Your landlord will require certain safety requirements but these should be clearly stated, e.g., that the access doors not be propped open and that you not store or place anything in the fire stairs that would impede access of others.
  • This is not good. This is not right. You will want to provide (and your landlord will require that you provide) certain security features. These will likely include installing automatic door closing devices on all doors between the fire stairs and the floors of your premises, tying such devices into the base building fire alarm and life safety system, installing a key card locking system and tying your security system into the building security system so that the building management system can distinguish between an authorized and unauthorized entry into the fire stairs. Other possible landlord requirements include:
  • The installation of video and other surveillance equipment.
  • Providing your landlord with a “master” card key for access.
  • That any alterations that tie into the building’s fire safety system be performed by your landlord’s fire safety contractor, at your expense (but make sure the rates are competitive).
  • Your waiver of any claims against landlord arising out of parties gaining access to and from your premises through the fire stairs. We suggest that you resist this waiver if possible, but at a minimum provide an exception to the extent any such claims arise as a result of the negligence or willful misconduct of your landlord or its agents, employees or contractors.
  • It is fun to have fun but you have to know how. Often landlords will require that all of the lease provisions regarding the tenant’s insurance and indemnification obligations apply to the portion of the fire stairs between the floors of the tenant’s premises as if it were part of the tenant’s premises. You should resist this provision since you do not have exclusive possession of the fire stairs, but if you are unable to delete this provision you should be careful to provide that you will not be required to carry “all risk” property insurance and that your indemnification obligations will only apply to the fire stairs with respect to you or anyone claiming by, through or under you (i.e., employees, guests, contractors, etc.). Your obligations should be subject to your landlord’s primary obligations to comply with laws and maintain and repair the fire stairs as a common area.

You have brains in your head, you have feet in your shoes. You can steer yourself any direction you choose. If you choose to steer yourself up and down your building’s fire stairs, then follow the seven suggestions above. Kid. You’ll move mountains!