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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Tuesday, November 21, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will provide real estate counsel with a review of how parties in leasing transactions can allocate risk to protect their respective economic interests. The panel will address indemnification provisions, including those for actions arising from a party's negligence, additional insured (AI) endorsements, and waivers of subrogation for the parties to protect themselves from economic loss.

Faculty

John G. Kelly
Shareholder
Bean Kinney & Korman, PC

Mr. Kelly focuses his practice on general corporate law and real property law, including commercial real estate leasing, financing and acquisitions, and business mergers and acquisitions. With respect to leasing, he represents both landlords and tenants nationwide in substantial office, retail, industrial and government leasing transactions. Mr. Kelly serves on the Board of Editors of Commercial Leasing Law & Strategy, a national publication. He has also served as a featured guest on real estate leasing topics on Commercial Real Estate Radio. Mr. Kelly’s lending experience includes representing both lenders and borrowers in complex financial transactions secured by real or personal property, including the negotiation of the initial loan documents and advising with respect to workout strategies and foreclosures.

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Jeremy Y. Weltman
Shareholder
Ruberto, Israel & Weiner, PC

Mr. Weltman's wide-reaching litigation practice focuses on finding successful resolutions to his clients' legal issues. He represents both individuals and companies across a range of industries including hospitality, real estate, construction, healthcare, restaurant, and retail. Mr. Weltman's direct civil and commercial litigation experience includes handling complex commercial and business litigation, employment litigation, Wage Act litigation, probate litigation, real estate disputes, construction matters, civil rights litigation including ADA accessibility, accommodation issues, and high impact class action work, municipal disputes, appellate advocacy, and other tort based litigation matters.

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Stephen E. Friedberg
Member
Mintz Levin Cohn Ferris Glovsky & Popeo PC

Mr. Friedberg is engaged in the general practice of commercial real estate law, both nationally and locally, including complex leasing transactions; office leasing; shopping center, office and commercial building development; construction and redevelopment; sales, acquisitions and financings of large multiproperty groupings; complex financial restructurings for developers and other property owners; and the acquisition and disposition of oil and gas properties. Mr. Friedberg has lectured on various issues concerning office leasing, shopping centers and telecommunications.

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Description

Indemnification agreements are widely used to shift risk in a variety of real estate transactions. Real estate leasing counsel must understand the impact of indemnification lease provisions--who is ultimately responsible for the claim and when and how is this responsibility shared? The indemnitor must negotiate contractual clauses that limit the scope of the indemnification.

The party seeking indemnification must negotiate provisions that address negligence, AI status, and defense of claims. Understanding the relationship between contractual indemnification, insurance requirements, and different AI endorsements is critical to effectively allocating risk. The prior ISO AI endorsement revisions are crucial when drafting risk transfer language.

One of the more complex risk mitigation issues is the interplay, under both property and liability policies, between the insurer's right of subrogation and the parties' attempts to waive subrogation. By way of mutual waivers, each party agrees to obtain from its insurer a waiver of the insurer's right of subrogation against the other party. Counsel must understand and critically analyze subrogation issues in lease negotiations.

Listen as our authoritative panel of real estate attorneys discusses contractual indemnification in real estate leases and how to reconcile indemnity language with insurance coverage, AI endorsements, and waivers of subrogation. The panel will offer best practices for mitigating and allocating risk in real estate leasing transactions.

Outline

  1. Indemnification lease provisions
    • Fault-based vs. "no-fault"
    • Unilateral vs. mutual
    • Interplay with insurance
    • Statutory considerations
  2. Additional insured coverage
    • Additional insured vs. additional named insured
    • Endorsements vs. certificate of insurance
    • Policy language and various additional insured forms
    • Scope of coverage
  3. The interplay between contractual indemnity and AI coverage
    • Contractual indemnification
    • Contractual insurance requirements
    • AI coverage
    • Crafting contractual indemnification provisions
  4. Subrogation
    • Overview of subrogation principles
    • Mutual waivers of subrogation
    • Limited waivers of subrogation

Benefits

The panel will review these and other relevant issues:

  • How can counsel draft indemnification lease provisions that protect their clients--whether the indemnitor, landlord, or tenant?
  • How can counsel ensure that contractually required AI coverage is satisfied by the named insured's policy?
  • How have the prior ISO's revisions to AI endorsements narrowed the scope of coverage for AIs?
  • How can counsel draft subrogation waivers that protect both landlords and tenants?