In my previous blog posts I have been focusing on strategies for being more efficient in lease transactions. In this post, let’s drill down on two of my suggestions: (1) well-written agreements; and (2) less one-sided documents.
A poorly-drafted agreement is inherently inefficient. Sloppy drafting should be fixed, which adds time to a transaction, resulting in higher transaction costs. So how about simply not fixing the poorly-drafted document, you ask? “Why, Ms. Attorney, are you wasting time modifying this and that in this agreement we received from the other side?” The significant danger in failing to fix a poorly-drafted document is that the parties will end up with an agreement with provisions that do not reflect a party’s intention or can mean more than one thing, leading to misunderstandings, disagreements, and possibly litigation, much of which could have been avoided (or at least the risk of these unfortunate events could have been minimized). “Cleaning up” a poorly-drafted agreement also creates an agreement that reads well and is understandable by lawyers and non-lawyers alike. On the flip side, not only do your edits add time and cost to a transaction, they can be taken poorly by the other side—the drafter may be offended or patronized—but saving the drafter’s feelings is not a valid reason for not making an edit.
CONTINUE READING . . .
So if your goal is to be more efficient in a lease transaction, lease edits should focus on those that minimize future misunderstandings, disagreements and litigation. Arguably then, one should not waste time making a document “pretty” just for the sake of satisfying the curmudgeonly grammarian in you (guilty as charged). For example, it bothers me when “which” is used when “that” is the proper word, drives me crazy when “therefore” is used when it should be “therefor”, and makes me batty when an agreement says “for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged”, knowing full well that the receipt and sufficiency are acknowledged. I also want to fix typos and words erroneously capitalized, change “on going” to “ongoing” and “cross-hatched” to “crosshatched”, and bring consistency to formatting and references. (Yes, I am the life of a party when the discussion turns to the use of Oxford comma.)








To the lawyers out there: How many times have you been told that you or the other side is “over-lawyering” the deal? Maybe you’ve made the accusation before. I know I have. That’s because I believe that a good deal-maker must have perspective. Which brings me back to my question whether a deal can be killed by one or both of the attorneys.
Important points in a Landlord audit provision: short deadline after receipt of the reconciliation statement to both request and perform the audit (so Landlord can close its books), confidentiality of the results (so Tenant doesn’t run around telling everyone what it found out), prohibition against contingency fee auditors (so the auditor is not incentivized to find a problem), limit the number of times an audit can be performed as well as the look-back period (keep the audit manageable and reasonable in scope) and, if Landlord agrees to reimburse Tenant for its audit costs if a significant problem is found, make the threshold for error high. 