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Ammendment to the lease

Discussion in 'Commercial Landlord & Tenant Issues' started by Michael So, Jul 9, 2019.

  1. Michael So

    Michael So Law Topic Starter New Member

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    Hi -

    I have a commercial tenant that recently signed an amendment to their original lease. In their original lease, it states that any repairs/maintenance from the walls inward is there responsibility. The tenant recently contacted me for a repair and I dispatched my contractor for repair. When the bill came, the tenant refused to pay for the maintenance.

    In the amendment to the lease, it cites the original lease as well as our intent to amend the original lease In the amendment, there is a paragraph "Entire Agreement: Modification" which states that the amendment contains all of the agreements of the parties hereto with respect to the subject matter hereof an no prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. This paragraph is followed by "Ratification: Amendment controlling" which states except and to the extent modified by this amendment the original lease is and shall remain binding upon the parties hereto and in full force and effect in accordance with its terms.

    From my perspective, the amendment is to the original lease and it is pretty clear. However, the tenant believes that the "Entire Agreement: Modification" overrides the original lease. Any thoughts would be much appreciated.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    Sorry, can't help you without reading both documents in their entirety. All to often somebody says "it states" and when presented with the document, it doesn't or something was taken out of context.

    Note that you can upload a file here so scan both documents and upload them so we can read them and perhaps make helpful comments.

    Meantime, please specify what the repairs were and how much money they cost.

    One more thing, was this amendment a mid-term amendment or did it coincide with the renewal of the original lease?
     
    Last edited: Jul 9, 2019
  3. Michael So

    Michael So Law Topic Starter New Member

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    The original lease states that hvac maintenance including changing of air filters is the tenant responsibility. The tenant had not done maintenance nor did they have an air filter in the hvac system which caused damage requiring maintenance (300 dollars).

    The amendment was completed for a renewal of the original lease.

    I’ve included the first page of the amendment. The tenant feels that paragraph 7 governs the terms of the lease in its entirety and that the original lease does not matter.
     

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  4. adjusterjack

    adjusterjack Super Moderator

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    You've got a problem. There appears to be a conflict between paragraph 1 and the first sentence of paragraph 7. Then the second sentence of paragraph 8 says that the terms of the amendment control any conflicts between the original lease and the terms of the amendment.

    Others may disagree but I see the tenant's point. At the very least there's an ambiguity in there and court's generally rule ambiguities against the creator of the contract.

    If you believe that the tenant owes you $300, you might want to serve him a pay or quit notice, followed by eviction if he doesn't pay. Then get this into court where a judge can rule on the intent of the parties.

    If you don't, the next damage due to the tenant's lack of maintenance could be $3,000 or even $30,000. Or, you can let it slide and hope that kind of thing doesn't happen again for the next 5 years.
     
  5. Michael So

    Michael So Law Topic Starter New Member

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    Correct me if I’m wrong, but the heading states that it is an amendment to the lease agreement so the amendment cannot now become the lease in it’s entirety, or is that what you are saying?

    My understanding of the entire agreement modification is to ensure all amendments are written into the document so that both parties are not relying on any prior oral or written (not signed) agreement between the parties. Not that this amendment overwrites the prior lease agreement.

    Paragraph 8 still mentions that the original lease is binding. I can understand if there was an amendment in this doc that said Hvac repairs were the landlords responsibility which would then overwrite the prior agreement.

    Am I not thinking about this correctly?
     
  6. adjusterjack

    adjusterjack Super Moderator

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    Your tenant interprets it one way, you interpret it another way. I can't say which one of you is right. All I'm saying is that I do see a contradiction in there that gives rise to the dispute.

    Maybe a judge will see it your way, maybe he won't.

    Your options are either let it slide or go to the mat with it.
     
  7. Michael So

    Michael So Law Topic Starter New Member

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    So let’s say that the amendment is now the lease in its entirety, there is nothing that governs hvac maintenance and repair. Who’s responsible?
     
  8. PayrollHRGuy

    PayrollHRGuy Active Member

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    Ultimately the landlord unless the tenant did something to break the HVAC. I say this because the tenant can choose to live without the HVAC or may leave claiming the landlord was in breach of the lease by not fixing the HVAC.

    In either case, the tenant will be gone and the LL will either need to fix it or try renting it out sans HVAC.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    Right. The owner of a property is ultimately responsible for paying for repairs and maintenance even if he can never collect from the tenant.

    One of the many reasons I got out of the landlord business and never looked back.
     

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