Rent Deferral Agreements for Defaulted Commercial Leases: Pre-Negotiation, Risk of Insolvency, Landlord Due Diligence

This CLE course will discuss factors to consider when negotiating a commercial tenant rent relief agreement for landlord and tenant counsel. When beginning the process of potential rent relief, landlords will want to consider their cash flow and financing arrangements and whether third-party consent is necessary, and whether rent relief would affect the landlord's ability to pursue insurance claims and other relief. Likewise, tenants must work closely with landlords and counsel to structure deals in a way tied to the tenant's current and anticipated financial reality.

In a volatile economy, circumstances arise where tenants may require rent relief. A well-crafted rent relief agreement requires balancing potential liabilities for both sides to provide tenants with leverage to remain in their spaces and landlords with assurances that tenants will eventually be able to pay rent.

Counsel's pre-negotiations often start with the tenant's written request for rent relief, clarity about the landlord's expectations of information from the tenant, the potential amount and period of rent relief, and provisions for a finalized rent relief agreement.

The landlord must develop its due diligence plan to evaluate and determine whether, how much, and how long to provide rent relief. The landlord should thoroughly review the tenant's financials and assess the risk of default or insolvency. Landlords can balance these considerations against their potential cash flow and responsibilities to any applicable lenders and investors.

Tenants will have to weigh the options in a landlord's rent relief offer and the probability that the tenant's business will survive. In these negotiations, tenants and their counsel must compare the risk of accepting a landlord's offer with the potential additional obligations the landlord will often package with it, such as demands for personal guaranties or relinquishment of security deposits.

Listen as our expert panel provides the advantages and risks to landlord and tenant counsel when entering a rent deferral agreement and best practices for developing a plan and lease modification that all parties would consider successful.