Page 9 - NBIZ Magazine February 2023

Texas law states that commercial
landlords must set out the tenant’s liability
in the lease. Commercial leases require charges, some old forms still have insufficient language
to pass through all of the expenses incurred.
landlords to specifically set out any
special charges by amount or method of The Form Language
computation before a tenant is liable for Here is a typical pass through provision for common area
these charges. maintenance charges found in some current lease forms:
Common Area Maintenance Costs
Landlord agrees to maintain and repair throughout
the term hereof the common areas and facilities of the
The statute requires all landlords and managers to building, including, without limitation, the automobile
review their current lease form for possible revisions. entrances, exits, driveways, parking areas, pedestrian
Many current forms today fail to list special charges walks, landscaped areas, public toilets, meeting rooms,
that are charged to tenants. Whether the charge is for a lighting facilities, service areas, and building signs not
particular tenant or an assessed charge such as a common otherwise the responsibility of tenant as set out in this
area maintenance charge, the charge should be detailed lease (said areas hereinafter called the “Common Area”).
in the lease. The reason for the requirement is to provide Landlord’s maintenance and repairs shall include all
the tenant with the charges that may occur during the repairs and replacements and the supplies and materials
tenancy. Landlords and their management team must therefore, which in landlord’s reasonable judgment are
make sure the lease form complies with this law. necessary to preserve the utility of the common area
The statute is clear on this issue. Seems simple, right? and facilities in the same condition as they were at the
Here is the problem. Most commercial landlords are using time of completion.
leases that attempt to pass through all of the common As used herein, the term “Common Area
area maintenance charges incurred in the operation of Maintenance Costs” shall mean all costs and expenses
the subject property through long, drawn-out provisions. of every kind paid or incurred during the term of this
While most triple net leases have language to pass Lease in connection with the operation and upkeep of
through the obvious taxes, insurance, and maintenance the common area and facilities within the building,

NBIZ ■ February 2023 9