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Loren
Loren, Attorney
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Experience:  30 years experience representing clients.
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This is a question concerning breaking the lease of a

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This is a question concerning breaking the lease of a commercial building in which I am the rentor. So, if there is someone available who has expertise in that area that would be who I need.
JA: Because laws vary from place to place, can you tell me what state the property is in?
Customer: Indiana 46350
JA: Has any paperwork been filed?
Customer: Not yet, lots of email conversations, nothing notarized or filed with the court.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Just that I have thousands of dollars in lost revenue due to having to close the building for a total of two weeks due to fumes from landlord's construction

Thank you for using JA. I am Loren, a licensed attorney for over 30 yrs., and I am here to help.

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What is your legal question, my friend?

Customer: replied 1 month ago.
I rent a commercial building. I am 2 years into a 3 year lease. The building owner has broken the law repeatedly concerning criminal trespass. The landlord has taken the electricity and gas that I pay for the area I rent and used it to power, heat and cool other parts of the building and the construction that is going on in the rest of the building (a fairly large stripmall type building). There are many little things that have been unprofessional but not necessarily illegal. However, for the last two weeks I have had to close my business entirely do to fumes from construction on another part of the building. I have had the fire marshall out to see if my employees or clients (people with autism and cannot speak in many cases) were in any danger. His answer was that the chemical being used was not toxic in that it requires hazmat to clean up or is dangerous to handle and the fire department did not have an opinion. However, the fire marshall did say he thought it would fall under the purview of the health department. I have forwarded the issue to the health department and not gotten a reply. I did however, get a photo of the warnings on the label of the chemical being used (a concrete sealer) and it clearly states that it will cause illness with extended exposure. I have lost approximately $20,000 in revenue over a two week period. I have found another commercial building to rent as there are so many problems at the current building, and the landlord has been so indifferent to his responsibility to maintain a safe rental environment that I want out of that building before the lease is up. But, I do not know how to broach the subject and want to be somewhat informed before I tip my hand and let him know I am on my way out. I have a decent case to sue him for lost wages. I am thinking I will wave my right to pursue that as long as I leave that building without a breach of contract suit, loss of my deposit or any other financial problems as a result.
Customer: replied 1 month ago.
I do have a lawyer on retainer. However, not only is this not his area, but he also has a conflict of interest as he is friends with my landlord's son.

Thank you for the additional information. I am sorry to hear of the trouble you are having due to the landlord's improper actions.

Every tenancy carries with it the implied warranty of habitability and the right to quiet enjoyment of the premises in exchange for the rent.

If the landlord is refusing to make necessary repairs or is otherwise interfering with the use and habitability of the leased premises then you can sue for breach. In the course of the suit you may be able to leverage an early termination with the return of all deposits.

A riskier way is to move out now and declare the lease terminated due to "constructive eviction". In other words, the action or inaction of the landlord has made the premises unhabitable and you are forced to move out.

You still have to sue and the risk is that the court finds the premises WAS habitable and you end up being liable for breach.

Make sure you have a written record of the damages and your request for repairs.

While not legally required, it is recommended you have an attorney representing you in this.

If you need assistance finding local counsel try Martindale Hubble (site rules prohibit us from referring specific attorneys). Many attorneys themselves use this site to locate attorneys outside their jurisdiction or expertise:

http://www.martindale.com/Find-Lawyers-and-Law-Firms.aspx

It is a huge worldwide database searchable by location and specialty. The attorneys are peer rated. So, they represent the top of the profession.

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Customer: replied 1 month ago.
Ok, let's assume that I have more to lose by NOT going to court than the landlord. I guess the assumption I am making is that he owes me far more money than he would get if the contract were not broken and that the going to court route is a bad plan for him. I would rather not add to the lost revenue by adding attorney fees and would rather approach him with steps to a resolution outside of court. Is there any sort of protocol to follow in that situation? For example, I am planning on sending him a bill for lost revenue. I could include in that bill a resolution/settlement and state the details of that resolution. If he agrees on paper, and signs, is that document legal and enforceable?

Let the landlord know you need to meet to discuss the lease.

Then go in and prepare to renegotiate. The market value of the premises with fumes is substantially diminished. I suspect the lease contains a waiver of lost business. So, you will need to negotiate.

There is no specific protocol, but you can bring in you financial information to show the lost business and a correlation with the construction activity.

If that does not work, you will need to sue.

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