§ 3.01A Description of Demised Premises

• Jurisdiction: United States
• Publication year: 2022

§ 3.01A Description of Demised Premises

[1]—The Actual Premises

Many practitioners have fallen into the potentially dangerous habit of casually describing the space or area to be demised under the lease by reference to a drawing or sketch.¹ The subsequent interpretations of such careless definitions can have very significant financial impacts. Moreover, an imprecise definition of the premises may cause legal disadvantages to the landlord or tenant throughout the term of the lease. To cite just one example, in the event the landlord desires to effect a dispossession of a tenant for failure to perform its obligations under the lease, it is a fatal defect in the legal papers if the space is not properly characterized in the petition to the court.² Improper or imprecise characterization of the leased premises typically falls into one of the following categories: (1) a description by boundary or by sketch of the floor plan of the space, the ground or the particular improvements, usually cross hatched or marked to reflect the demised premises; or (2) square footage designation. Both of these methods can present serious, and often very expensive, discrepancies in interpretation.

When the floor plan or boundary diagram of the property is physically marked up to reflect the location of the demised premises, the markings can accidentally or intentionally take in additional areas not intended to be leased or leave out needed areas. This can have wide-ranging consequences. The landlord's or tenant's obligations to cause the space to comply with changes in the law³ can be vastly affected by these improper descriptions.⁴ The cross hatching method of description can also have a distinct impact on the maintenance and repair obligations of the tenant for the demised premises.⁵ For instance, an imprecise description can cause repair and replacement obligations with respect to certain building systems, such as electrical risers, plumbing columns and air conditioning systems, that are neither desirable nor bargained for.

When space is designated by square footage area, the designation is often imprecise. Such a designation does not take into account the fact that areas may be measured in several different ways, such as rentable area (which bears little relationship to reality or to the other measurements), usable area, allocable area and carpetable area.⁶ The difference between rentable area and exclusively designated usable area, for example, usually consists of allocated space from public areas or nonexclusive tenant areas as well as some building system areas and dead or fictitious space. The manner of these measurements and allocations vary from jurisdiction to jurisdiction. In New York City, this may mean a difference of as much as 30% between the allocations of one landlord in one building and the allocations of another landlord in another building. It is also interesting to note that over the years the same space in the same building with the same landlord may also vary sometimes considerably.

True space measurement, even when the attempt is made to accurately reflect the space, may vary considerably depending upon how the measuring is done. A measurement from the interior...