ANWALTSKANZLEI MATURANA-NUÑEZ

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COMMERCIAL
LEASE LAW

Commercial lease law is one of the core competencies of the law firm Maturana-Nuñez. The law firm has extensive experience of advising tenants and landlords, in particular on the preparation and negotiation of lease agreements. Another focus is the review of existing leases with the aim of identifying opportunities and risks for the clients. If it is advisable, the appropriate steps are being taken.

As leases are frequently of great commercial importance, it makes sense to consult an expert in this field before even signing a lease for commercial premises. Nevertheless, very often leases are agreed within which the legal quality does not correspond to the economic significance of the agreement being made; due to numerous sources of error, there are often serious financial losses.

For example, in commercial leases in which a term of more than one year is provided for, the statutory written form must be strictly adhered to. Even many lawyers are not aware of all the factors that must be considered. Violations of the written form almost always have the consequence that the lease can be terminated prematurely by either party without any specific reason, despite the provisions on contract duration. This problem has been exacerbated by a recent Federal Court of Justice decision (verdict dated 27 September 2017 – file number XII ZR 114/16; NJW 2017, 3772). Pursuant to this decision, so-called Schriftformheilungsklauseln, in which violations of the written form by the parties to the lease are declared to be irrelevant, are invalid. In order to exclude the premature termination of a lease, the manifold requirements of the written form − even in supplements to the lease − must therefore always be observed.

Other just as typical as risky mistakes in the design of commercial leases include imprecise descriptions of the intended use or the agreed specifications of the leased property, unrecognised prohibitions against the commercial use of the property and inadvertent assumptions of liability.

For landlords, it may also be disadvantageous if contract clauses are classified as inadmissible general terms and conditions and thus as invalid. Then the statutory provisions will apply, even though these should have been deviated from.

The law firm Maturana-Nuñez offers bespoke, sector-specific leases which take all these risks into account.

It is worth noting that precise and comprehensive leases do not simply ensure clear conditions in the event of a dispute; rather, unambiguous provisions can prevent conflict before it even arises.

The law firm Maturana-Nuñez always considers the market conditions in lease negotiations. Thus, in a landlord-friendly market environment such as Berlin, it may be disadvantageous for a potential tenant to demand the optimisation of almost every clause in a contract. Such an approach could lead to a swift breakdown in contract negotiations. On the other hand, however, it is necessary to negotiate a contract that protects the interests of the client and, in particular, does not impose any disproportionate risks on them. In many respects, this goal can be achieved by making it clear to the negotiating partner that there are no conflicting interests, but rather legitimate wishes on both sides that can be reconciled by means of competent contract drafting. Furthermore, a simple lack of legal knowledge often causes a negotiating party to want to retain the clauses of the standard contract that they always use, even though there is no objective reason for doing so. In such a situation, a comprehensible explanation of the legal situation can be of help.

From the tenant’s point of view, prudent negotiations are also useful in the area of ​​general terms and conditions. Provisions that at first glance seem to be disadvantageous to the tenant may be invalid and would only become legally binding, as so-called individual agreements, after relevant negotiations between the parties. It therefore makes sense to weigh up exactly to what extent talks with the landlord should be held.

In short, obtaining legal advice in connection with commercial leases is ultimately an investment that regularly pays off. The law firm Maturana-Nuñez would be happy to assist you.