By Keith H. Burroughs keith@bcnattorneys.us
When a lease agreement, or for that matter any agreement, has been reduced to writing, its true intention and purpose will be determined from the terms of the written instrument itself. See, Frumin v. May, 251 S.W.2d 314 (Tenn. Ct. App. 1952). Written agreements are generally deemed to contain the complete agreement of the parties. Therefore, it is generally deemed that the written agreement supercedes all other agreements, written or verbal, between the parties. Commercial lease agreements typically also have provisions which prevent the modification of any term of the agreement unless the modification is in writing and signed by the party to be bound by the modification. If there is a term of a lease which is important enough for you to discuss with the other party, then it is important enough to be reduced to writing and contained in the final lease agreement.
The first step before entering into a commercial lease is to review your business plan, identify all items of importance to you as either the lessee or lessor and create a list of the goals you wish to achieve through the vehicle of the lease. Once you have determined your business goals, then meet with your attorney and explain exactly that which you seek to the attorney so that the proper terms and conditions can be reduced to writing to help you achieve those goals. Re-review the document with the attorney, checking to make sure that all items identified have been addressed and expect your attorney, if he or she is providing you with proper service, to suggest additional items of which you have not previously thought.
Do not accept responses from the other party to your questions or concerns to the effect that the provision in question is a standard provision in all leases. There are many leases but you are agreeing to be bound by only one lease. There is nothing standard about it.
Be prepared to negotiate. A successful negotiation requires some give and take on the part of both parties. Prior to beginning negotiations over the lease you should prioritize your goals to determine items which you would deem vital to the agreement and then list the other items in descending order of importance to you. You may wish to yield on items of lesser importance in order to obtain exactly what you desire on other items involved in the negotiation. Beware of other parties who present a "take it or leave it" attitude. Such behavior on the part of the other party may foreshadow future problems with the performance of the other party's duties under the lease.