Lot Lines: Disaster lessons for property owners

Last Updated on Sunday, 27 August 2023 02:54 Written by Chris Griswold Monday, 20 June 2016 02:49

Courtesy the Journal Record
by Ted Streuli

There were two tragic incidents in Orlando, Florida, this week: the mass shooting at a nightclub that left 50 people dead and a 2-year-old killed by an alligator on Disney property.

I asked Oklahoma City attorney Chris Griswold what commercial property owners and managers can do to limit their liability in such extraordinary circumstances.

The property owner might not have liability in the nightclub shooting, but it’s something an owner would like to prevent. Oklahoma allows licensees to carry firearms, but Griswold said that can be prohibited by a commercial landlord. The owner or his agent must post a sign saying guns are not allowed on the property, and it then applies to any part of the privately owned building that’s open to the public. That means if it’s posted, no one except law enforcement officers can carry a gun into reception areas, elevators, hallways, dining spaces or other public places.

There are exceptions, Griswold explained. Landlords can’t prohibit gun owners from locking their weapons in their cars parked on the property, and they can’t prohibit a tenant whose office is not open to the public from carrying a gun if he can enter without passing through a public space.

For multifamily housing, there would have to be a stipulation in the lease.

Carrying a gun into a privately owned building that prohibits firearms is not a criminal act. The landlord may order the person off the premises; if he doesn’t comply and the police are called, he can be fined $250. The penalty isn’t stiff, but landlords and their property managers who have posted the appropriate sign have the right to remove people who are armed.

As for the alligator incident, Disney’s lawyers have likely been hunkered down, frantically looking for a way to minimize the company’s liability. As Griswold noted, the whole point of Disney is to entertain families with children, and the company has a responsibility to do so in a safe manner.

The family assumed no risk of a gator attack, and they may argue that no reasonable person would expect an alligator to come after a child on theme park property. Disney could have marked the dangerous area or hired a company to remove the alligators. At the very least, they could have posted warning signs.

Having warned the public that a danger exists, said Griswold, can help mitigate the liability when something goes wrong.

Read more: http://journalrecord.com/2016/06/16/lot-lines-disaster-lessons-for-property-owners-opinion/#ixzz4C8CEU1Ob

Tenancy At Will vs. Tenancy At Sufferance

Last Updated on Sunday, 27 August 2023 02:54 Written by Chris Griswold Tuesday, 13 October 2015 06:14

The purpose of this article is to solely address the attributes of a tenancy at will vs. a tenancy at sufferance arrangement within the context of what happens at the natural expiration of a written commercial lease agreement when a tenant remains on the leased premises.

Simply put, if there’s a written lease and the lease expires naturally, by its own terms, whether a tenancy is at will or at sufferance depends upon one simple thing:  the consent (or lack thereof) of the landlord for the tenant to remain in possession.

If the landlord authorizes the tenant to remain in possession, the tenancy is at will (and becomes a periodic tenancy as soon as the tenant begins paying rent regularly).  If the landlord doesn’t authorize tenant’s continued possession, the tenancy is at sufferance.

What’s one reason for us to have the legal fiction of the tenancy at sufferance and what are its attributes?  Without it, the statute of limitations on adverse possession would begin running upon the natural expiration of the written lease and, upon the expiration of such required statutory period (15 years for Oklahoma, and 10 years for Texas), the hold over tenant could have arguably acquired fee simple title to such leased premises by bringing suit and demanding title to same by its simple adverse possession of the leased premises for the required time period above – something a landlord can easily prevent by declaring (in the written lease) that such holdover tenant’s possession of the leased premises after the natural expiry of the written lease to be one of a tenancy at sufferance.  The payment of rent by tenant (and the acceptance thereof by landlord) during the tenancy at sufferance can raise arguments by either party as to whether there is a true tenancy at sufferance arrangement, since the acceptance of rent by landlord could be argued to be landlord’s tacit consent to tenant’s occupancy – subject to the written terms and provisions of the lease (which could squarely address these issues).

What are the attributes of a tenancy at will and what are its strengths?  An arrangement, usually unwritten, whereby the landowner permits the tenant to be on the property with no advance understanding as to the termination date or the amount of the payment of rent.  This arrangement can, in the real world, also briefly follow the natural expiration of a written lease for a very brief time – until the tenant begins paying rent regularly (which is when a periodic tenancy is created and the tenancy at will terminates).  A tenancy at will arrangement, even after being converted to a periodic/month-to-month tenancy arrangement by the regular payment of rent, can be conveniently terminated by either the landlord or tenant by giving advance notice to the other party of such party’s intent to terminate the leasehold (usually 30 days ahead of the desired termination date, depending on the circumstances), unless the lease says otherwise.  Accordingly, while not required, the lease could provide that tenant can remain after the natural expiration date provided the tenant pays rent at some higher stated rate (usually 150% to 200% of the previous rate), not to exceed some stated period of time – thereby allowing the tenant some time flexibility for moving out while also guarantying the landlord a stated amount of rent (while the current tenant remains in possession) while a new, replacement tenant is being secured.

The information presented within this article is of a general nature and is not intended to be relied upon as legal advice in any particular matter without first consulting qualified counsel.

What My Clients Are Saying

“Just a note to let you know how much I have appreciated your help in the past with lease preparation and certain lease particulars that the lay person may sometimes not be familiar with. You have demonstrated a good balance of getting past certain points of law that when considering the lease in its entirety, have a tendency to slow the deal process. As I continue to do more business with larger companies, especially public companies, your knowledge of what is relevant and what is not is of great benefit. I also value you not interjecting yourself in the business points of a transaction except when appropriate. I trust that we will be doing business together for many years to come.”
Mark Ruffin, Precor/Ruffin / Oklahoma City, Oklahoma

Sellers Using AAI (All Appropriate Inquiry) to Manage Risk

Last Updated on Sunday, 27 August 2023 02:55 Written by Chris Griswold Wednesday, 1 September 2010 09:24

If you’re somehow involved in the commercial real estate business, you’ve become familiar with the concept of “All Appropriate Inquiry,” otherwise referred to as “AAI.”  The Environmental Protection Agency has promulgated AAI to, more or less, increase the steps which a reasonable buyer should take in the process of determining/evaluating whether the property they’re buying is, to the extent possible, free of excessive hazardous material.  Today, I want to expand the way people have traditionally viewed AAI.  Read more below….

Sellers Using AAI To Manage Risk

You already know that conducting a Phase I is, as a rule, required of any buyer in order to, among other things, determine a current “baseline” at the time of purchase.  Moreover, you know that the engineering firm conducting the Phase I will usually advise the buyer whether a Phase II is, in their opinion, necessary.  Accordingly, people have come to view AAI as really a safeguard for buyers.  However, sellers should consider the benefits of having a Phase II conducted at their own cost and expense – regardless of the engineering firm’s recommendation.  Why?

First, most purchase contracts make the seller indemnify the buyer for the presence and clean-up of hazardous materials.  As the seller, when you weigh the risks associated with indemnifying the buyer against the time delay, inconvenience and expense of conducting a Phase II, sometimes, it might just be worth it to go that extra step in establishing a “harder” current baseline.  Maybe not in every deal, but, for certain deals (e.g., where the property is adjacent to I-3 or a strip of railroad tracks), you may sleep better knowing that you conducted a Phase II so as to better prevent that baseline from “moving around” in the future.

Second, just because the current buyer’s specific uses/needs don’t trigger any alarms after the completion of their Phase I study doesn’t mean that some future, subsequent purchaser’s specific uses/needs won’t call your current “baseline” into question when hazardous materials eventually appear on the property (and odds are they will) and every other owner in the chain of title throws up their hands and says “…we didn’t do it.”  That’s when your Phase II looks really good against a bunch of other Phase I’s….  Something to think about.

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“I commend Chris Griswold for his efforts in a recent transaction for keeping distant legal departments of large companies informed.  Chris has always been a real asset in bringing people together and he has the ability to center the focus on the transaction.  It’s good to have qualified, energetic, and capable legal support ready to move the process along.  My thanks to Chris for his efforts in this most recent transaction.”

Irmon Gray / Broker / NAI Sullivan Group / Oklahoma City, Oklahoma