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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Real Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin
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here is my case: The landlord demands to use only his own contractor

Customer Question

here is my case: The landlord demands to use only his own contractor to renovate the tenant's medical office while I, the tenant is paying most of the cost and have no control over the contractors. Due to the landlord's mismanagement, the work has not near to half done after 3 months, but the landlord demands to pay rent starting 11/1/2011 as stated on the lease (at that time it was assuming the work would be done by then) when his contractor just started the sheetrock on 12/8/2011. Now he is threatening to cancel the lease if I don't pay within 10 days and warn me I will be personally responsible to pay the rent for the full term of 10 years.
Submitted: 5 years ago.
Category: Real Estate Law
Expert:  Dimitry Esquire replied 5 years ago.
Thank you for your question. I happen to be a New Jersey licensed expert who will do his best to assist you.

Your landlord is incorrect since you are free to walk away from the lease without penalty due to the fact the premises are "unfit" and unable to be used. If you did not move in as yet and have been unable to do so due to the work, explain to the landlord that you would NOT be liable as the landlord is in breach of contract by not providing you with space as described in the lease agreement. As it is expensive and unreasonable to go to court, your landlord should back off, although I would suggest that you strongly consider obtaining a possible modification to the lease in writing from the landlord so he does not later attempt to somehow hold you responsible for the missing rent.

Good luck.
Customer: replied 5 years ago.

Thanks so much, Dimitry, even though the lease says paying rent in 11/1/2011 or earlier?

 

The lease didn't specify the work has to complete to collect rent though.

Expert:  Dimitry Esquire replied 5 years ago.
You are most welcome.

Even if the lease did not so specify, consider sending a written letter to the landlord stating that since you are unable to use the premises, you consider him in technical breach as you "never took occupancy" of the premises due to their unfit status. Then you would need to negotiate with the landlord and point out that if you can show the judge that you never moved in due to his failure to provide you with space as advertised, you will be able to legally cancel the lease and he will be stuck without a potential tenant.

Good luck.
Customer: replied 5 years ago.

Thanks again, I am so grateful for your help as I have never encountered anyone so unreasonable and bully like him.

 

here my lease says: "

2. Term The premises are leased for a term of ten (10) years commencing on November 1, 2011, and expiring on October 31, 2021. In the event the Tenant improvements are substantially completed prior to the aforementioned commencement date then the lease and lease payments shall commence on the date of said earlier substantial completion. In the event the earlier commencement of the lease is less than a full month, than the amount of rent due shall be prorated accordingly."

 

It doesn't mention he has to make the place available for me even though during the lease neogociation, my lawyer suggested:" It appears that the additional language in the proposed lease, (i.e. the lease term does not begin until leased premises are substantially completed) fully protects your client. Setting the start date 3 months from now is a disincentive for the L/L to move swiftly. Additionally, L/L does not want to be in the position of delaying the commencement of the lease due to any delay brought about by the Tenant. It has always been the L/L's understanding that the Tenant wants to be in the premises asap. However, if there is some other reason why the lease needs to be started later that was not previously discussed, please share that information with me.

 

and then the landlord responded 8/3/11:" Your response has not addressed the L/L's concerns. To help move past this issue may I suggest that the lease start on 11/1/11, the date you have chosen, or earlier if the L/L completes all of the improvements it has agreed to do or if there is any delay brought about by the Tenant or Tenant' contractors, then on the date the L/L could have completed its work but for any such delay".

 

my comment to the above at that time in Aug: "my contractors will need some time to complete their work after L/L's contractors have finished. Eg, flooring will not be started until the walls and paint are completed so as to prevent damage. Cabinetry can't be installed until the floor is done. I don't consider these as "delay". It won't be fair for him to take two months and leave me two weeks to finish. I think 11/1/2011 should be sufficient time to start."

 

sorry to bother you this late, you really help to ease my mind.

 

Expert:  Dimitry Esquire replied 5 years ago.
Thank you for your follow-up.

Not a problem, and look to his own lease agreement as your way out--notice that it states that improvements have to be "substantially" completed. That is not the case, and therefore the lease is not in force. Until the premises can be utilized by you as promised AND conditions are substantially completed, you have a much stronger claim here which it appears your attorney and I agree on.

Good luck.
Customer: replied 5 years ago.

the landlord's contractor will probably finish the work in 2 weeks and I am planning to get my contractors in for installing floor, cabinets and painting. since I recieved his threatening letter to cancel my lease and make me pay for 10 years of rent. I don't know if I should continue planning the renovation. What is your advise for me in that aspect? I am afraid to pull in more money when he cancels my lease.

 

Jenny, MD

Expert:  Dimitry Esquire replied 5 years ago.
My apologies but I cannot advise you. While I am a licensed attorney, I am not your attorney, and I cannot provide you with legal advice--that should be done by your attorney. While I can answer general legal questions, I cannot make a determination on what is your best path here. Having said that, if the landlord is this "reasonable" now, and it is currently a buyer's market on real estate, it may be wise to at least consider exploring other options.

Good luck and take care.
Customer: replied 5 years ago.

I actually prefer to move to the new place and would not want to be cancelled which I may have to pay the renovation cost which incurs from my leasing of the place, the landlord's cost and mine together. Don't you think the court will honor him the money he spent on partial renovation?

 

Sorry, I try to finish my questions up.

Expert:  Dimitry Esquire replied 5 years ago.
That I cannot answer without reviewing the contract and also what manner of renovations he was making on the premises (by which I mean if they were general renovations or special renovations based on your unique business or need--the former are his responsibility and the second may be your responsiblity). I cannot tell you if your contract would have an escape clause for you, as it may be something where if the improvements are not made on time you can leave the terms, but if not then you very well may be liable for part or all of the improvement expenses.

Good luck.
Customer: replied 5 years ago.

The landlord threaten me to cancel the lease if I don't pay rent within 10 days. If he cancels it, am I still liable for all the cost.

 

His contractors are doing plumbing, electrical, and dividing rooms which costs about $48000--$25000 from the landlord and $23,000 from me, and in addition, I will still pay the rest of fitting such as painting, flooring and cabinet.

 

the original lawyer I hired to go over the lease for me is very busy. Since I have this problem with the lawyer recently, I normally has to wait three days to get her answer back. Can you recommend a layer who is more aggressive to help?

Expert:  Dimitry Esquire replied 5 years ago.
Ma'am,

You are asking me a question I cannot answer without reviewing your contract. Therefore as I stated above, I cannot tell you if you are liable as contractual language governs liability. I did state that if your premises are not ready, you can go to court and claim the premises are not fit and use it as grounds to get out of the lease, but beyond liability of payments that is beyond my knowledge and beyond the scope of your initial request.

My apologies but I am barred by my site agreement in providing a personal referral. I would suggest that if you are not happy with your attorney to contact the county bar association for a referral, or browse the listings at www.avvo.com and www.martindale.com as there you can search by fees, location, experience, and expertise.

Good luck and take care.
Customer: replied 5 years ago.

my sincere thanks to your help and advise again. Sorry to bother you this long. Here is my last question, "if I still want to keep the lease, do I still initiate the court case so that I don't continue to wait and not able to persue further construction and delay, which may alternately be responsible for the more rent. or do I just write a letter to the landlord as you sugguested earlier.

Expert:  Dimitry Esquire replied 5 years ago.
You are most welcome.

Initiating a court case is expensive. It may be easier to start with the letter, and if that fails, progress to a suit. Have your attorney draft up a letter demanding assurances for you (he will know what that means), and take it from there.

Good luck.
Customer: replied 5 years ago.

Thanks so much and you have a good night and Happy holidays to you and your family.

 

Jenny, MD

Expert:  Dimitry Esquire replied 5 years ago.
You are most welcome and happy holidays to you as well. Please do not forget to press the green "accept" button as that is the only way I get compensated by my assistance to you. Thank you.

Sincerely,

Dimitry, Esq.
Dimitry Esquire and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 5 years ago.
Hi Dimitry:

Somebody says your answer to my case is in my favor only if it is residential. For commercial lease it is not the case. Is it true?

here i quote the lease of the rent:
2. Term The premises are leased for a term of ten (10) years commencing on November 1, 2011, and expiring on October 31, 2021. In the event the Tenant improvements are substantially completed prior to the aforementioned commencement date then the lease and lease payments shall commence on the date of said earlier substantial completion. In the event the earlier commencement of the lease is less than a full month, than the amount of rent due shall be prorated accordingly

It's only mentioned to Pay earlier if the tenant improvements are substantially complete but does not say what happen if late or indicate the primisis has to be substantially completed to pay rent.

The landlord is also a retired insurance lawyer. He sounds confident he will not only make me pay all his expenses in renovation but also paying him 10 yrs rent. Do you think this is possible? Thanks
Expert:  Dimitry Esquire replied 5 years ago.
Thank you for you for your follow-up.

My apologies on the delay, I was offline. I understand the distinction here between commercial and residential agreements and based my answers on commercial laws. The reason is because commercial laws tend to go by the language in the contract, with your "out" being the fact that the premises are NOT substantially completed. Plus, commercial OR residential landlords both have to utilize best measures to mitigate damages which means that if you choose to walk away (in the chance that it is deemed a valid contract), the landlord MUST attempt to re-let it as soon as possible or else you can claim bad faith from his lack of mitigation and even possibly end up of rental payments. Of course he will try to impress you with his past legal expertise, and it really is up to you as to whom to believe. My basis is new jersey law and commercial applications, but you are free to retain a real estate attorney that can give you an answer that you are more confident in.

Good luck.
Customer: replied 5 years ago.
I am confident in your Nj license and experience. I specially requote the lease for you is to show that the lease language did not mention " substantially complete" on other occasions except in the occasion of earlier. I want to believe you but not sure what my next move. I have no problem taking the place but just refuse to pay extra two month rent in Nov and Dec when the place is not ready as os now. I paid some of my contractors but don't know if I should spend more money in the meantime waiting for him to see if he will cancel my license and make me pay 10 yrs. He has been very dishonest and bullying and has a misconduct record online as a lawyer. I am afraid he can lie to do want he wants.
Expert:  Dimitry Esquire replied 5 years ago.
Thank you for your follow-up.

My apologies on your confusion, truly, but ultimately what I provide is legal information and not actual advice or representation. The only two considerations I have for you are that:
1. I personally have no real need or motivation to provide you with inaccurate information or to push you into a foolish confrontation. By that I mean I am not attempting to increase your attorney fees (or rather my attorney fees) and I have no problem as a professional in giving out unwelcome news when there is need to do so.
2. The other party can use his attorney background for his own use and also as a weapon of intimidation when all else fails.

Good luck.
Customer: replied 5 years ago.
Hi, thank you for your reply. I apologize I did not know how the payment works I have a unlimited subscription but it does not seem that I can accept your answer. I have contacted to customer service to resolve it.

My lawyer has wrote a letter to the landlord below. Can you comment? Thanks.

I have discussed this matter with my client.  It appears that there have been significant delays by your contractors with respect to the work needed to make the premises substantially complete.  My client noted that there was little or no work done by your contractors from October 18, 2011 to December 18, 2011 while  various issues were worked out.  Dr. Liu resolved the requirements for a special use bathroom and hospital grade electric by going to the township and obtaining waivers of these requirements, thus saving considerable extra time for your contractors.  Cost overruns by your contractors have exceeded $10,000.00 which my client has reluctantly agreed to pay.  
 
The only change requested by my client was angling a wall which she requested to be done several weeks ago and which was never communicated to your contractors until they were in the middle of sheetrocking.  The premises was to be substantially completed by November 1, 2011; it is at least 2 weeks away at this time from being substantially completed.  You have refused to allow Dr. Liu to use her own contractors who could have completed the work in a more expeditious manner and at a much lower cost.  
 
I raised the issue of the commencement of the lease and completion of the landlord’s work during negotiations on the contract.  You assured me in writing that the lease term would not begin “until the leased premises are substantially completed”.  You noted in your response to my July 25, 2011 letter that you did not want there to be any disincentive for the landlord to move swiftly.  However it appears that exactly what the tenant feared would happen has occurred.  Your contractors have no incentive to proceed diligently and in fact there were several weeks this fall when little to no work was being done at the premises.  My client has paid significantly more than she was advised by your office the renovations would cost and has had very little input into the cost of renovations.  They have essentially been presented to her as a fait accompli.
 
Dr. Liu is prepared to pay the rent once the premises is substantially completed so that she may take occupancy.  Please note that even when the premises are turned over to her, she will still need to do significant work at the premises in order to use it for her offices. Please advise when the premises will be substantially completed so that the tenant may take occupancy.  Thank you.

 I have discussed this matter with my client.  It appears that there have been significant delays by your contractors with respect to the work needed to make the premises substantially complete.  My client noted that there was little or no work done by your contractors from October 18, 2011 to December 18, 2011 while  various issues were worked out.  Dr. Liu resolved the requirements for a special use bathroom and hospital grade electric by going to the township and obtaining waivers of these requirements, thus saving considerable extra time for your contractors.  Cost overruns by your contractors have exceeded $10,000.00 which my client has reluctantly agreed to pay.  
 
The only change requested by my client was angling a wall which she requested to be done several weeks ago and which was never communicated to your contractors until they were in the middle of sheetrocking.  The premises was to be substantially completed by November 1, 2011; it is at least 2 weeks away at this time from being substantially completed.  You have refused to allow Dr. Liu to use her own contractors who could have completed the work in a more expeditious manner and at a much lower cost.  
 
I raised the issue of the commencement of the lease and completion of the landlord’s work during negotiations on the contract.  You assured me in writing that the lease term would not begin “until the leased premises are substantially completed”.  You noted in your response to my July 25, 2011 letter that you did not want there to be any disincentive for the landlord to move swiftly.  However it appears that exactly what the tenant feared would happen has occurred.  Your contractors have no incentive to proceed diligently and in fact there were several weeks this fall when little to no work was being done at the premises.  My client has paid significantly more than she was advised by your office the renovations would cost and has had very little input into the cost of renovations.  They have essentially been presented to her as a fait accompli.
 
Dr. Liu is prepared to pay the rent once the premises is substantially completed so that she may take occupancy.  Please note that even when the premises are turned over to her, she will still need to do significant work at the premises in order to use it for her offices. Please advise when the premises will be substantially completed so that the tenant may take occupancy.  Thank you.
 
 
 
​​Very truly yours,
 
 
Expert:  Dimitry Esquire replied 5 years ago.
Thank you for your follow-up. I believe to utilize the "subscription plan" you have to post a new thread, and then "accept" the new thread if the information is useful, of course. I can wait until you repost or I can respond here. Kindly let me know which is better for you. Thank you!
Customer: replied 5 years ago.

Hi, Dimitry:

 

It is a pleasure to come to you again. I finally moved in on 2/2/2012 to my new leased office after the lengthy construction by the landlord. The contract says the lease started on 11/1/2011 but I didn't think it was fair for paying without being able to move in. After negociation with the landlord, he agreed to move to 12/15/2011 and even made an addendum to the lease via email. now the landlord is trying to suit me that I don't pay all the rent and charges for work that I did not even approve, threaten to evict me out of the building after I spent so much money on renovation for flooring, cabinets and furnitures. What do you think my next step? Thanks