Questions to Ask an Attorney About a Commercial Lease
For a tenant, usually a small business owner, who has been handed a landlord's draft and wants a lawyer to go through it before anything is signed. The 50 questions run in the order the work does: picking the lawyer and settling the fee, then rent and charges, the personal guarantee and other risk, use and repairs, the term and the ways out, and finally which changes to press the landlord for. Lease law differs by country and state, so wherever a point turns on local rules, ask how it works where the building stands.
The questions
Each question, and why to ask it
Lawyer and fee
How many commercial leases have you reviewed for tenants in the past year, and for what kinds of space?
Why ask it
Leasing is its own corner of property work, and a lawyer who mostly closes house sales is likely to read a lease more slowly and catch less. Listen for the kind of space as well as the number: a restaurant unit in a strip center raises different points from an office suite or a warehouse bay. If the answer is one or two a year, find out who else in the firm does more.
Do you mostly act for tenants or for landlords, and do you have any tie to this landlord or its broker?
Why ask it
Landlord-side experience is useful, because that lawyer knows which requests owners grant without a fight. A current relationship with this owner, its management company or the listing broker is another matter, and you should hear about it before you send the draft. Conflict rules depend on where the lawyer is licensed, so have them explain how theirs apply here.
What will a review of this lease cost, and is that a flat fee or by the hour?
Why ask it
Many lawyers will quote a fixed price for reading the draft and writing up comments, then bill hourly once negotiation starts. Give the page count and the number of exhibits when you ask, since a 60-page shopping center lease is a different job from a 12-page form. Get the figure in an email or an engagement letter before any work begins.
What does your review fee cover: written comments, a marked-up draft, a call to go through it, the back and forth with the landlord's lawyer?
Why ask it
Two quotes with the same number can buy very different amounts of work. A marked-up draft you can forward is worth more than a spoken summary, because it is the document the other side answers. Get a price for a second and a third round of changes too, because a first markup seldom comes back accepted whole.
How long will you need with the draft, and can you meet the date the landlord has given me?
Why ask it
State the deadline up front and say whether it came from the owner or from a broker who wants the deal closed. Turnaround depends on the lawyer's calendar and the length of the document, so pin it to a day, not 'soon'. If the landlord's date cannot be met, the usual fix is a short written request for more time.
Should you deal with the landlord's side directly, or should I carry your comments back myself?
Why ask it
Having the lawyer negotiate costs more hours and usually moves faster on the legal clauses. Carrying the points yourself keeps the bill down and keeps the relationship with the landlord in your hands, which can suit a small deal with a local owner. Many tenants split it: they argue the money and the lawyer handles the wording.
Rent and charges
Reading this draft, what will I actually pay each month in year one, and in the last year of the term?
Why ask it
The answer you want is a small table: base rent, operating charges, taxes, insurance and anything else the lease bills, for each year. A lawyer who has read the rent clauses closely can build it quickly, and the blanks in it show which costs the draft leaves open. Test the last-year figure against what the business could afford if sales stayed flat.
Whatever the listing called it, is this a gross lease or a net one once you read the clauses?
Why ask it
Gross, modified gross and triple net are labels brokers use loosely, and the clauses decide which of the building's taxes, insurance and upkeep reach you on top of the rent. A draft advertised as gross can still pass through increases over a base year. The useful answer names each cost that is yours and the section that puts it there.
How does this lease raise the rent, and is the increase clause written the way the broker described it?
Why ask it
Fixed steps, an index and a reset to market rate each read differently on the page from how they sound on a tour. Have the lawyer point to the sentence and work one year's increase by hand. Where the draft and the broker's email disagree, expect the draft to govern unless it is corrected before you sign.
Which costs can the landlord pass through to me under the operating charges definition, and what would you want carved out?
Why ask it
The definition is often a long list that ends in a catch-all, so the exclusions are where the review pays for itself. Typical requests are to leave out capital replacements, the landlord's own financing and leasing costs, and work done for other tenants. Which of those owners in your area usually accept is local knowledge, and it tells you where a request can land.
Can you get a yearly ceiling written onto the operating charges, and how would you word it?
Why ask it
Without a ceiling, the part of your occupancy cost you cannot forecast has no limit. Wording decides what a cap is worth: it can compound or reset each year, and it may leave out taxes, insurance and snow removal, which are often the lines that jump. See the proposed sentence before it goes to the landlord.
How is my share of the building's taxes and insurance worked out, and what changes it?
Why ask it
Your share is a fraction, and the draft chooses what goes underneath: the whole building or only the part that is leased. Check which, and what the lease does if a sale leads to a new tax assessment, since that turns on local rules. A retail draft may also charge percentage rent, and there the definition of gross sales needs the same close reading.
What audit right does the draft give me over the landlord's books, and what happens if I miss the window to object to a year-end bill?
Why ask it
Many drafts give the tenant a short window to object and treat silence as acceptance. Find out how many days you get, who pays for the audit, and whether an overcharge above a set percentage moves that cost to the landlord. Put the window in your calendar the day you sign.
What starts the rent clock in this draft, and am I protected if the landlord hands over the space late or my permits drag?
Why ask it
The commencement clause is often a formula, not a date, and it can start the clock whether or not you are able to open. A day of free rent for each day the landlord's work runs over, or a right to walk away after a set period, are two protections a tenant's lawyer may request. It matters most when you are building out.
Are there fees in here that nobody mentioned: late charges, interest, administrative fees, the landlord's legal costs?
Why ask it
These sit in the default and miscellaneous sections, a long way from the rent page. Have each one read out with its amount and its trigger. A late fee that applies on day two with no notice is a common thing to soften, and some places limit what can be charged, so check whether yours does.
Guarantee and risk
Does this lease come with a personal guarantee, and what exactly would I be on the hook for?
Why ask it
The guarantee is often a separate page at the back, sometimes spelled guaranty, and it needs reading as closely as the lease. You want to know whether it covers rent for the whole term, legal costs and damage as well, and whether the landlord can come to you before trying the company. What it can reach, such as a home or a joint account, depends on local law and on how you hold your assets.
Can the guarantee be limited, and which kind of limit do landlords here tend to accept?
Why ask it
The usual options are a cap in dollars or months of rent, a guarantee that falls away after a run of on-time payments, and one that ends when you give notice and hand back the keys. Find out which of these the lawyer has won for a tenant your size. A bigger deposit is sometimes the price, so compare the two in cash terms.
My spouse or business partner is being asked to sign the guarantee too. What does that change?
Why ask it
Skip this if you are the only one signing. With several signatures a landlord can often pursue any one person for the whole amount, and a partner who later leaves the business may stay bound unless the document says otherwise. Each person asked to sign should hear the answer firsthand, and the lawyer may say one of them needs separate advice.
Should the tenant on this lease be my company or me, and is the company set up properly to sign?
Why ask it
The tenant named on the lease is the one the landlord looks to for the rent. If the company does not exist yet, or you planned to sign personally and transfer the lease later, say so now, because that changes the signature block and the assignment clause. How much a company shields you depends on local law and on whether a personal guarantee sits beside it.
What does the draft let the landlord take from my security deposit, and when does it have to come back?
Why ask it
Deposits on business premises often have less legal protection than deposits on a home, and how much less depends on where you are. Three details to get: whether you must top the deposit back up after a deduction, the deadline for its return, and whether it can step down over time. A letter of credit in its place frees up cash but carries a bank fee.
What does the indemnity clause make me responsible for, and does it run both ways?
Why ask it
An indemnity is a promise to cover someone else's losses, and a one-sided draft can have the tenant paying for events it did not cause, such as an injury in the parking lot. The markup should show where your responsibility stops: your own suite and your own carelessness is a common line. Then check that the landlord makes a matching promise for the areas it controls.
Does the insurance this lease requires match a policy I can actually buy, and at what cost?
Why ask it
Send the insurance section to your insurance agent the same day the lease goes to your lawyer. Naming the landlord as an additional insured is routine, but coverage limits written for a national chain can be expensive for a small shop. The lawyer can ask to bring them down to what your agent quotes.
What does the draft say happens if a fire, a flood or a government taking puts me out of the space?
Why ask it
Three things belong in the answer: whether rent stops while you cannot trade, how long the landlord has to rebuild, and whether you may end the lease if it takes too long. Some drafts give the landlord every choice and the tenant none. Raise the insurance money for improvements you paid for as well, because the draft may send it to the landlord.
Use and repairs
Is the permitted use clause wide enough for what I do now and what I might add in the next few years?
Why ask it
Tell the lawyer plainly what the business might become: delivery, alcohol, classes, a second product line, online orders shipped from the premises. A clause that names one narrow activity sends you back to the landlord for consent each time you grow. Wording that names your trade and adds related uses is the usual request.
Can you get me an exclusive for my type of business, and what would my remedy be if the landlord broke it?
Why ask it
This one is for retail and service tenants in a property with several units; an office tenant can usually pass over it. The remedy is the part to press, because an exclusive with no rent reduction or exit right behind it is hard to enforce in practice. Check as well whether another tenant's exclusive already limits what you may sell.
Who should confirm that zoning and the certificate of occupancy allow my use: you, me or the landlord?
Why ask it
Plenty of drafts say the landlord promises nothing about whether your use is legal there, and the rent is owed either way. Some lawyers check with the municipality as part of the review and some leave it to the client, so settle who is doing it and by when. A lease made conditional on the permits and licenses you need is the stronger protection, if the landlord will agree to it.
Under this draft, which repairs are mine and which are the landlord's, and where is it unclear?
Why ask it
The answer works best as a plain list: roof, structure, HVAC, plumbing, storefront glass, parking lot. The unclear items are the ones to fix now, because a vague clause becomes an argument on the day something breaks. Set the list beside what you saw when you walked the space.
Could I be made to pay for replacing the HVAC, the roof or another big system, and how would you limit that?
Why ask it
Repair and replacement are different words, and some drafts put both on the tenant. Ways a lawyer may try to limit it include a yearly dollar ceiling, spreading a replacement over its useful life so you pay only for the years you are there, or a landlord warranty for the first year. Find out the age of the equipment before the call, since that tells you how hard to push.
Who is responsible for bringing the space up to code, accessibility included, and for anything already wrong with it?
Why ask it
Compliance clauses often hand the tenant every legal requirement that applies to the premises, including ones that were unmet before you arrived. The laws involved differ by country and state, so ask which apply to this building and what triggers an upgrade. One split tenants' lawyers often propose: the landlord delivers a compliant space, and you answer for what your own work or use sets off.
What does the lease say about contamination or hazardous materials, and am I protected from what was there before me?
Why ask it
Worth raising for ground-floor, industrial and older buildings, and for any site that once held a gas station or a dry cleaner. The aim is a draft that makes you responsible only for what you bring in. If the landlord holds an environmental report, your lawyer can request a copy.
How does the alterations clause treat my build-out: what needs the landlord's consent, and who owns the work once it is in?
Why ask it
If you are building out, bring your plans or at least a sketch. Two additions tenants' lawyers often propose are a deadline for the landlord's reply to drawings and a list of minor work that needs no consent at all. Ownership affects your insurance, your taxes and what you can take when you leave, so pass this answer to your accountant.
What condition must I leave the space in at the end, and can the restoration duty be listed or capped now?
Why ask it
An open-ended duty to return the premises to their original state can mean demolishing a build-out the landlord approved. The fix is to have the items you must remove named when the plans are approved, and ordinary wear excepted. Landlords tend to give this up more easily at signing than in the final month.
If the landlord has promised build-out work or an improvement allowance, is the work letter tight enough to hold them to it?
Why ask it
The work letter is an exhibit, and it is where promises made on the tour go missing. Check that it states the amount, what the money can be spent on, when it is paid, and what you can do if payment is late, such as setting it off against rent. If nothing of the kind was promised, skip this one.
Term and exit
How does the renewal option work in this draft: the notice date, the rent, and what could cost me the option?
Why ask it
Options are usually strict. Get the notice window in calendar dates, how the renewal rent is set, and whether an earlier late payment or a sublet cancels the right. If the rent resets to market, the clause needs a way to settle a disagreement, such as each side naming an appraiser.
What does the draft charge if I stay on past the last day, and can that holdover rate be brought down?
Why ask it
Holdover clauses often set a multiple of the final rent, and some add the landlord's losses if an incoming tenant is kept waiting. It bites when a move slips by a few weeks, which is the moment you have least room to argue. A lower multiple, or a month or two at the ordinary rent if you give notice, is a modest thing to request at signing.
Would the assignment clause let me sell the business, bring in a partner or sublet part of the space without the landlord blocking it?
Why ask it
Describe how you expect to leave the business one day, because the clause should fit that plan. Listen for three points: whether consent can be refused for any reason, whether a change in who owns your company counts as an assignment, and whether the landlord may take the space back instead of consenting. Anyone buying your business will read this clause early.
If I assign the lease to a buyer, am I still liable for the rent, and does my guarantee end?
Why ask it
Under many leases the original tenant and the guarantor stay liable after an assignment unless the landlord signs a release. That can leave you answering for a stranger's missed rent years after you sold. A release once the buyer meets a stated financial test is the thing to request, and your lawyer will know how often landlords in your market agree to one.
Which slips would put me in default under this draft, and do I get written notice and time to cure each one?
Why ask it
Have the lawyer list each trigger: late rent, a lapsed insurance certificate, closing for a few days, breaking a building rule. Then get the cure period for each, and whether notice has to be in writing. A common request is written notice and a short grace period for a late payment, at least once or twice a year.
If I default, what can the landlord actually do: lock me out, claim all the remaining rent, take my equipment?
Why ask it
Remedies clauses are drafted at their harshest, and local law decides how much of that a landlord may use. The points to cover are which remedies apply where the building is, whether the landlord has to try to re-let the space and credit you with the new rent, and whether the draft gives it a lien over your equipment. A lender financing that equipment is likely to want the lien removed.
Is there any way out early if the business fails or outgrows the space, and what would it cost?
Why ask it
Most drafts have no exit, so this is something to add, not find. Three routes to raise: a termination right after a set year for a stated fee, a shorter first term with more renewal options, and a freer right to sublet. Set each against the rent you would owe if you simply closed, which shows what the right is worth.
Can the landlord relocate me, take back part of the space or end the lease if it redevelops?
Why ask it
Relocation and redevelopment clauses turn up mostly in shopping centers and larger office buildings. If one is in your draft, ask for it to be struck, and if it stays, for the landlord to pay for the move, match the size and visibility, and give long notice. A business that depends on its exact spot should treat this as a deal point, not boilerplate.
Does the subordination clause put my lease at risk if the landlord's lender takes over the building?
Why ask it
Drafts commonly rank the lease below the landlord's mortgage. The protection is an agreement from the lender not to disturb your tenancy while you keep paying, often called a non-disturbance agreement, and how a foreclosure treats a tenant without one depends on where you are. The more you are spending on a build-out, the more this is worth the request.
What dates and notices does this lease put on me that I could miss, and can you list them on one page?
Why ask it
The list should carry the renewal notice window, insurance certificate renewals, the deadline for disputing charges, any date the deposit steps down, the surrender date and the holdover rate if you overstay. Some lawyers prepare a lease summary like this for a small extra fee. Of everything the review produces, it is the page you will open most often during the term.
What to push on
Of everything you have marked up, which three or four changes matter most for a business like mine?
Why ask it
A full markup can run to dozens of comments, and sending them all with equal weight invites the landlord to trade away the ones you need. Have them ranked, each with what it could cost you in a bad year. Then decide together which ones you would walk away over.
Which of my requests is this landlord likely to refuse, and what would you offer in exchange?
Why ask it
A lawyer who works in your market can often tell an institutional owner with a fixed form from a local landlord who will sign what is reasonable. Fallbacks are what you are after: a capped guarantee if removal is refused, a longer cure period if the default list stays as it is. Having the second position ready shortens the back and forth.
How much leverage do I have here, given my size and how long the space has sat empty?
Why ask it
Share what you know: how long the unit has been listed, what the broker has said about other interest, how many neighboring units are dark. The honest read may be that you have little, in which case the advice is to spend it on one or two clauses. Be wary of anyone who says every term can be won.
I have already signed a letter of intent. Does anything in it tie my hands now?
Why ask it
Bring the signed copy. A letter of intent usually says it is not binding, but some carry binding pieces such as exclusivity or a deposit, and business terms both sides have shaken on are hard to reopen. If you have not signed one yet, get it read first: it is far shorter than the lease and it sets most of the price.
Are there promises the landlord or broker made that are not in the draft, and how do we get them in?
Why ask it
Leases commonly include a clause saying the written document is the whole agreement, so a promised parking space or free month that is not on the page may be hard to enforce. Hand over the emails, the listing and your notes from the tour, and have each promise added as a numbered term or an exhibit.
Before I sign, will you read the final version against the last markup, exhibits included?
Why ask it
Changes agreed by email do not always reach the signature copy, and exhibits are sometimes swapped late. Comparing the final against the previous draft is quick work for a lawyer and the last cheap moment to catch an error. Agree the cost now, and say you want it done even if the landlord is pressing for a signature that day.
At what point would you tell me not to sign this lease at all?
Why ask it
You are paying for judgment as well as edits. A useful answer names conditions: an unlimited guarantee on a long term, no confirmation that your use is permitted, a rent your own figures do not support. If the reply is that any lease is fine once it is negotiated, ask what they have advised other tenants to walk away from.
How to get the most from a commercial lease review
Practical guidance for the conversation itself
What to send the lawyer first
The whole draft, exhibits included
Forward every page the landlord sent: the lease, the work letter, the rules and regulations, the guarantee and any site plan. Exhibits carry the build-out promises and the daily restrictions, and a review of the body alone misses them.
The letter of intent and the emails
Include the letter of intent, the listing and any message in which the broker promised something. The lawyer is comparing the draft with the deal you thought you made, and can only do that with the paper trail.
A page about the business
Write down what you sell, your hours, the equipment you will install, how many staff you expect and where you want the business to be in three and in five years. The use, alterations and assignment clauses get judged against that page.
Your numbers and your limit
Say what monthly occupancy cost the business can carry and how much personal exposure you can live with. A lawyer who knows your ceiling can point to the clauses that threaten it and stop billing you for the rest.
Working through the markup
Ask for it in two layers
The marked-up draft is written for the landlord's lawyer. For yourself, ask for one or two pages in plain words: what you pay, what you risk and which dates you must hit. Read that summary first and the markup second.
Put a dollar figure on each point
For every comment, ask what it could cost in a bad year. An unlimited pass-through, a roof replacement and a guarantee for the full term can each be turned into a number, and the numbers show which comments deserve a fight.
Sort into must, want and drop
Three or four changes you will not sign without, a handful you would like, and the rest left alone. A short list is easier for the landlord's side to answer than forty requests, and it keeps the legal bill down on both sides.
Keep one running draft
Each round, have the changes made in a single tracked document and ask for a comparison with the previous version. Deals go wrong when a point agreed by phone never reaches the page that gets signed.
Where landlords tend to give ground
The guarantee
Outright removal is hard for a new business to win. A cap, an end date after a run of on-time payments, or a release when you hand back the space with notice are each asked for often, and a larger deposit is sometimes the trade.
Operating charges
Owners rarely rewrite the whole definition, but a yearly ceiling on the costs they control, a few named exclusions and a right to check the books are all ordinary requests. Ask your lawyer which of the three is normal for this kind of building.
Assignment and selling the business
Consent that cannot be unreasonably withheld, plus a carve-out for a sale of the company or a transfer to an affiliate, are requests many landlords will consider. Raise them even if selling feels a long way off, because the buyer's lawyer will.
Dates and notice periods
Longer cure periods, written notice before a default, a rent start tied to delivery of the space and a wider renewal window cost a landlord little. Ask for them alongside the harder points so there is something easy to say yes to.
Mistakes that cost small tenants
Calling the lawyer after the letter of intent is signed
By then the rent, the term and often the guarantee are settled in principle, and reopening them can look like bad faith. A short review of the letter costs far less than the lease review and shapes everything that follows.
Letting the other side explain the draft
The landlord's lawyer and the listing broker may be helpful and honest, and they work for the owner. What they tell you a clause means may count for little later if the page says something else.
Treating the form as fixed
A printed or 'standard' lease is the landlord's opening position. Small tenants do get changes, particularly in a building with empty units, and a polite written request has little downside.
Signing in a hurry to hold the space
A broker's deadline is sometimes real and sometimes a nudge. If another tenant truly is waiting, ask in writing for a few extra days; a landlord who allows no time for a legal review is showing you how requests will be handled during the term.