Page 16 - NBIZ August 2021
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              Tenant has thoroughly inspected the Leased
              Premises and Building. Tenant accepts the Leased     First, all commercial lease forms should
              Premises and Building in its “AS-IS” condition, with   clearly set out the parties’ duties to repair.
              all faults, including both patent and latent defects.
              Tenant taking possession of the Leased Premises     DON’T ALLOW YOUR TENANTS TO
              shall be conclusive evidence that Landlord’s work,     NEGOTIATE THE LANDLORD’S
              if any, has been completed and accepted by Tenant         DUTY TO REPAIR IN YOUR
              and that Tenant is occupying the Leased Premises
              in such AS-IS condition.  Additionally, Tenant                    LEASE FORM.
              acknowledges that neither Landlord nor any agent
              of Landlord has made (the same being expressly
              DISCLAIMED and WAIVED by Tenant) any repre-
              sentation or warranty, implied or express, regarding   this provision is. I am surprised how often I review a lease
              the habitability, condition, merchantability, fitness,   that doesn’t contain this important waiver.
              or suitability of the Building or the Leased Premises
              or any construction, fixtures or personal property   BE CAREFUL NOT TO WAIVE THE WAIVER
              leasehold improvements. Tenant is accepting all   PROVISION.
              defects, if any associated with Leased Premises; and   It should be noted that any affirmative statement made
              Landlord makes no warranty of any kind, express or   to the tenant before execution of the lease about the quality
              implied, for the Leased Premises (without limitation,   or condition of the leased premises if untrue would negate
              Landlord makes no warranty as to the suitability of   the “AS IS” waiver provision. The leasing and marketing
              the Leased Premises for a particular purpose nor as   personnel should refrain from making any statement
              to the absence of any toxic or otherwise hazardous   about the condition of the leased premises or building. You
              substances). Tenant’s obligation to pay Rent is not   cannot have it both ways. The tenant would not be bound by
              dependent upon the condition of the Leased Premis-  the “AS IS” waiver provision if it was induced to make the
              es or the performance by Landlord of its obligations   lease because of fraudulent representations or concealment
              under this Lease and Tenant shall continue to pay   of information by the landlord or the landlord’s leasing
              Rent, without demand, abatement, deduction, offset   and marketing personnel as to a defective or inferior
              or counterclaim, inspite of any breach by Landlord or   condition. In some situations, if the landlord knows about
              Tenant of any of their respective duties and obliga-  a latent defective condition that would affect the tenant’s
              tions under this Lease, whether express or implied.  occupancy and fails to disclose that information, the failure
                                                                may negate the “AS IS” conveyance if that defect affects the
           Or one like this:                                    tenant’s occupancy.

              Tenant acknowledges that Landlord has not made    MAKE THE WAIVER PROVISION OBVIOUS
              any representations or warranties with concerning   TO THE TENANT.
              the condition or quality of the Leased Premises or   The totality of the circumstances surrounding the
              Building.  Tenant has inspected and accepts the   agreement will be examined by the courts to determine
              Leased Premises and Building in their present     whether the “AS IS” waiver language is an important part
              "AS IS" condition as suitable for the purpose for   of the lease or just an ancillary “boiler-plate” provision.  So
              which the Leased Premises are leased.  Taking of   don’t hide this waiver. You need to make the provision stick
              possession by Tenant shall be deemed conclusively   out in the lease. The “AS IS” provision should be a separate
              to establish that the Leased Premises, Building, and   section of the lease. Some forms may put the provision in all
              common areas are in good and satisfactory condition   caps and/or bolded.
              as of when possession was taken.  Tenant further ac-  A properly drafted "AS IS" waiver provision in one's lease
              knowledges that no representations as to the repair   will eliminate one of the defenses and claims a tenant may
              of the Leased Premises or Building nor promises to   raise in a commercial occupancy. N
              alter, remodel or improve the Leased Premises or
              Building have been made by Landlord, unless such is   Brian D. Womac a licensed attorney in Texas since 1985
              expressly outlined in this Lease.                 celebrating 35 years of active practice in commercial real
                                                                estate law. He has been board-certified in commercial
           By agreeing to lease the premises in “AS IS” condition,   real estate law since 1991 and has personally handled
        the tenant agrees to make his/her own appraisal of the   over 3,000 litigation matters in Harris County, Texas.
        bargain and accept the risk that it may be wrong. With   His client base consists of corporations, partnerships,
        this “AS IS” provision, the landlord makes no assurances,   companies, lending institutions, insurance companies,
        express or implied, concerning the value or condition of the   investors, management and leasing companies, and
        leased premises or building. One can see how important   others owning real estate.

        16  NBIZ  ■ August  2021
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