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While reading over a lease agreement I saw this:

At the request of the Landlord, the Tenant shall sign a letter stating that the Landlord has fully performed all of the Landlord's agreements in this lease.

This seems like a terrible clause from the tenant's perspective. My interpretation is that the tenant is being strong armed into agreeing the landlord has held up his end of the agreement, whether or not the tenant feels this way.

Is this not suspicious? As a potential tenant, is there legal justification for my concern in signing this?

  • That provision may be void under state law, in which case you can sign the lease without worrying about it. What state is the property in? – phoog May 14 '17 at 6:22
  • @phoog New Jersey. Still, why would anyone put that in there? – bcf May 14 '17 at 13:10
  • a little searching suggests it's fairly standard. I have no idea why. Maybe someone who knows will happen along. If it is in fact standard, there will surely also be a standard procedure for tenants to follow when asked to sign such a letter by a landlord who has not in fact performed all agreements in the lease. – phoog May 14 '17 at 14:55
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    I would read it as requiring the tenant to sign the letter only if the landlord has actually performed all of his agreements, and my guess is a court would interpret it the same way. – Nate Eldredge May 14 '17 at 16:40
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I see no problems with this - it cannot force you to tell lies. A letter stating "... except for ..." would fully discharge the tenant's obligation.

This clause can only be sensibly interpreted (and would be so by a court) by reading in the words "... if they have done so" at the end. Al this binds you to is, if the landlord has fulfilled the lease, you commit to saying so.

  • It seems clear that I am agreeing to sign such a letter, with no provisions for the validity of my signature. You could argue this isn't the same as telling a lie, although I suspect they would use this against me by asserting I agreed they fulfilled the lease, when in fact I was merely conforming to my end of the lease. – bcf May 14 '17 at 13:20
  • The court likely wont punish you for not writing a such a letter if the landlord hasnt fulfilled his duties. Like dale says a court assumes both parties are honest people (not fair, but honest, its a big distinction), and the interpretation of the clause assuming the landlord was honest is that it only applies if he has fulfilled all his obligations or that it only covers obligations he has fulfilled, not ones he hasnt – Shazamo Morebucks May 15 '17 at 9:32
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This provision is called an attornment clause, and is routine, especially in commercial leases. As DaleM notes, despite the literal language of this clause, the duty to state that the landlord has fully performed, while drafted poorly (and if you can negotiate, it would be better to ask that the language be clarified to state that the tenant's duty may have exceptions if they exist), impliedly is limited to cases in which there is no breach. This implication flows from the general principle in contract law that one person's duty to perform a contract is usually conditioned upon the other party's non-breach of the contract. In cases where the Landlord has not fully performed, the tenant can respond by saying that the landlord has fully performed "except" in specified respects.

The purpose of an attornment clause is for a prospective buyer of the property to be able to confirm that there are no outstanding disputes with the tenants in a way that would be binding on the tenants as well as the landlord, or in the alternative, to learn going into buying a property that there is a present, active dispute between a landlord and a tenant under the lease even if it is not currently giving rise to litigation, so that the economic cost to the landlord of the dispute can be quantified when setting the value of the property at which the closing will take place.

Landlords include these clauses because if you can't obtain attornments from all of your tenants, your property is virtually unmarketable as a matter of commercial reality, and at a minimum would sell for a much lower price. I have had clients refuse to buy buildings because the selling landlords couldn't produce recent attornments from their clients.

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