Office Wisdom

As health care providers compete for patients, they seek locations convenient for patients. This phenomenon has driven clinics, urgent care facilities, and other health care providers into general office and store front retail space

Health care providers create special leasing issues. Among other things, health care providers work with chemicals, they produce biomedical waste, their patients have a greater need for privacy and are more likely than the general public to be disabled. For both the landlord and the tenant, the boilerplate language in most general office and retail leases fails to address the special characteristics of medical tenants. This article generally identifies some of the most common inadequacies.

Medical uses usually violate the boilerplate use provisions in most retail and office leases. In addition to modifying the use provisions, landlords and tenants should consider the representations and warranties within the lease, together with the hours of operation. Patients are more likely than the general public to have special access needs. Buildings containing health care providers are more likely to receive ADA scrutiny.

Though, as a practical matter, the tenant’s use may trigger the need for ADA compliance, the tenant will want to avoid lease language obligating the tenant to pay any of the costs that the landlord incurs to bring the building into compliance with ADA. While medical tenants generally bear the responsibility for finishing the lease premises consistently with the ADA, tenants will want to consider excluding the general building ADA compliance charges from the list of expenses passed through to the tenant.

The underlying problem is fairly simple. In the typical medical office lease, the landlord undertakes the construction of certain improvements in the premises prior to turning the space over to the tenant for occupancy. As a new tenant, you expect to walk into your finished office, move in your furniture, and then begin paying rent on the day you open for business. All too often, however, the lease provides for a fixed date on which rent will commence to be payable and there is no provision for delaying that date if completion of the landlord’s work is delayed.

Yet health care providers need to limit the landlord’s access to examining rooms and other areas during certain hours of the day. Generally, medical tenants will seek to place limitations on the landlord’s reentry rights. This can be done through designating certain privacy areas on a diagram showing the finished lease premises

Operating Expenses and Taxes. While some leases simply provide for a monthly rent, others also require the tenant to reimburse to the landlord a share of the operating expenses and taxes for the property. While there are many subtle changes that can be made to these provisions by an experienced real estate lawyer (depending on the form that the landlord is using), at a minimum a tenant should expect to receive a photocopy of the real estate tax bill for the property (as opposed to simply receiving a statement from the landlord) each year, to verify that he or she is not being overcharged. Likewise, the landlord’s statement of operating expenses should be reasonably detailed and the tenant should be afforded an annual right to review and audit the landlord’s books and records relating to both operating expenses and taxes, in order to verify that charges have been correctly computed by the landlord.

As health care providers seek to become increasingly convenient to their patients, they will continue to migrate to general office and storefront retail space. Both landlords and medical tenants need to work to ensure that their leases fit these special situations

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