Landlord Access: I Hear You Knockin’ But You Can’t Come In

Brooklyn Bridge Park has a new eight foot by seventeen and a half foot sculpture (see below) by the artist Deborah Kass which reads as “YO” if you see it from Manhattan and “OY” if you see it from Brooklyn.

Ms. Kass said the sculpture is “best left open to interpretation”, but also implied that Brooklyn’s “Oy” might reflect a roll of the eyes by Brooklyn to its brash big brother borough that too many still arrogantly refer to as “the City.”

Sounds much like the “Oy!” that involuntarily escapes my lips when my email box fills up at 5:00 pm on a Friday with a 150 page landlord’s lease draft.

The inter borough rivalry has changed over the years and now Brooklyn has developed its own hip and edgy reputation (okay, excluding the Brooklyn Nets).

My son Adam even took his first apartment on the Upper East Side in Manhattan because Brooklyn was “too expensive”. Adam is in law school now, which only proves “what does he know?”

Not much is more New York than “Yo” and “Oy”, and whether you are a glass half full or glass half empty kind of person, it is clear that we often look at the same thing from a different perspective than our neighbors.

Before I break into song, and with apologies to Paul Simon, it strikes me that commercial leasing has its own version of one commercial leasing lawyer’s ceiling is another commercial leasing lawyer’s floor.

Landlords want and at times need access to a tenant’s premises to make repairs, show the premises to prospective mortgagees and tenants and, of course, to address emergencies.

Tenants are wary of access rights and do not want their landlord showing up without notice, or at unreasonable times, bringing people into their premises and creating distractions.

One person’s reasonable access is another person’s breach of privacy.

So we say “fuhgeddabboudit” and protect yourself from unreasonable intrusions by covering the following nine issues in your lease access provision:

• Indicate notice and time. Require that your landlord’s access be at reasonable times and upon reasonable notice (except in the case of true emergencies i.e., imminent harm to persons or damage to property). You may want to specify the particular minimum notice (e.g., 24 hours, or one business day). Your landlord may require the right to provide oral (rather than written) notice, which may be acceptable if you specify the party who can receive such oral notice (e.g., an officer or office manager).

• Specify purposes for access. Many leases provide a broad laundry list of purposes including any reason the landlord may “deem necessary”. Limit such purposes to inspection, showing the premises to prospective purchasers, mortgagees or lessees of the building, or making repairs or alterations.

• Your landlord will also want to show your premises to prospective space tenants, but limit this right to some reasonable period (e.g., 12 months) prior to the expiration of your lease.

• Repairs and alterations should be limited to those (i) required to be performed by your landlord under the lease, (ii) necessary to comply with legal or insurance requirements, or (iii) after notice (except in an emergency) following your failure to make repairs required under your lease.

• Minimize interference. Your landlord should covenant to use reasonable efforts to minimize interference with your occupancy, perform work with diligence, take reasonable care with your property and repair any damage caused by such access. Leases often preclude any obligation to incur overtime costs in this regard, but your lease should provide an exception if such access denies you reasonable access, endangers the health or safety of any occupant or interferes with your ability to conduct business during ordinary business hours. In addition, your landlord should employ contractors at overtime rates if, at your option, you agree to cover the incremental costs.

• Require that your representative be present. Your landlord’s access should always be in the presence of you or your representative (except in an emergency) as long as you make such representative available.

• Secure Areas. You should be entitled to designate areas within your premises as secure areas (e.g., containing a vault, IT/data or other areas with proprietary information) to which your landlord cannot have access other than in emergencies. This can be especially important to a bank, securities firm or similar business. Your landlord will likely want to cap the size of such areas and will not have access to clean these areas.

• Security systems. You should have the right to install additional locks or other security systems as long as your landlord has available access for emergencies.

• Landlord installations. Lease access provisions often permit landlords to erect, use and maintain pipes, ducts and conduits in and through tenant premises. Your lease should provide that these must be concealed behind walls or above ceilings (or if necessary, “furred out” to such walls and ceilings) and be located so as to not interfere with your layout or use of your premises, other than to a de minimis extent.

• Storage of materials. Your lease may permit your landlord during the progress of any work in your premises or the building to store materials, tools, supplies and equipment in your premises. You should try to limit permission for such storage to repairs to your premises only, and your landlord should be required to exercise reasonable diligence to promptly complete the work, minimize interference with your business and repair any damage.

• Retail. Retail tenants will often require stricter access limitations. This is particularly true for a restaurant, nightclub or doctor’s office, where such access can have a more negative affect on your business.

Dave Edmunds, 1970’s rocker and well known commercial leasing aficionado, best summed up landlord access with his 1970 hit cover of a Smiley Lewis song, “I hear you knockin’ (but you can’t come in)“. Cover the nine issues above and you will be able to belt out that tune to your landlord (except in the case of emergencies, of course).