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Can an easement affect a commerical lease?

When considering a commercial lease, one area of potential conflict for the landlord and tenant are any easements that exist on the property that could affect the tenant if they are invoked or violated. An easement, in simple terms is an right regarding the property that is not held by the owner of that property, such as a city having the right to use the property in a certain way, or a business being barred from modifying the property even if the landlord allows the modification.

One way that an easement may prove lethal to a business is if there is some form of negative easement (one that restricts certain use) that places restrictions on digging. These are often related to a city's utility grid. If there is an underground utility easement regrading a certain property, this may mean that a business owner who signed a commerce lease planning to erect a large sign to identify itself may be barred from doing so. Similarly, a business may have intended to update and curate the landscaping of a storefront, only to discover that digging restrictions will not allow these changes.

Other kind of easements that should be specifically noted are those regarding use of the property or areas in practical proximity to the property. For instance, a specific property may have an easement that allows a disruptive presence that the lease did not mention. One such possibility is an aviation easement. A business owner with a property located far from any airports may not consider how much of a nuisance to the business flyovers at allowable below-average heights will be. Consequently, it may only be after moving in and attempting to get business rolling that the new tenant realizes the hurdle they now face.

These are only a few examples of the various easements that can be placed on a property that might cause impediments to business or incur unanticipated costs for commercial tenants. If you are considering a commercial lease, it is will worth the investment to employ the assistance of an experienced attorney in reviewing the lease and other documents relevant to the property. Proper guidance can help you make sure that you are really getting the best deal for your business, not a problematic location that stifles your initiative and stymies your investment.

Source: American Bar Association, "Some Less-Traveled Areas Of Due Diligence For Commercial Tenants And Their Counsel," Jennifer Burton, accessed Oct. 21, 2016

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