Page 14 - NBIZ August 2021
P. 14


                                                                                  “AS IS”


                                                                                    THE WAIVER

                                                                                         OF THE



                                                                                 OF SUITABILITY

                                                                                        By Brian D. Womac

                                                                                       e all have heard about “AS IS”
                                                                                       provisions in real estate trans-
                                                                                       actions. Sellers of real estate
                                                                                       have put the “AS IS” provisions
                                                                                       in deeds for decades to protect
                                                                    Wthem from buyers who find de-
                                                                    fects in the property after the sale. But did you know
                                                                    that a similar “AS IS” language can protect a landlord
                                                                    in the leasing of commercial property? Does the lease
                                                                    form have the landlord adequately protected?
                                                                       If a landlord owns commercial lease space, he/
                                                                    she needs to make sure the lease is strong enough
                                                                    to protect him/her from tenants that claim that the
                                                                    landlord is in default for defects and conditions that
                                                                    existed before or arose after the lease was signed.
                                                                    Texas contract law allows parties in a commercial
                                                                    lease to negotiate freely for terms and conditions
                                                                    that in a residential lease, might not be valid.
                                                                    Besides the rent amount, one of the most import-
                                                                    ant provisions to the commercial landlord from a
                                                                    legal perspective is the representation set out in
                                                                    the lease regarding the premises being leased to
                                                                    the tenant and the tenant’s waiver of the implied
                                                                    warranty of suitability.

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