Chapter 2 - § 2.5 • WHO ARE ALL THOSE OTHER PEOPLE?

• Jurisdiction: Colorado

§ 2.5 • WHO ARE ALL THOSE OTHER PEOPLE?

A lease generally refers to many types of people other than the landlord, tenant, guarantor, and lender or ground lessor. These characters make their appearances in several typical lease clauses. The types of people who are permitted to use the premises often appear in the grant, the permitted uses, and the assignment and subletting clauses of the lease. Parties related to the landlord who are protected from liability to the tenant appear in the exculpation clause, as do the people whose negligence or gross negligence is excepted from the exculpation clause. The categories of people to be indemnified by the landlord or the tenant appear in the various indemnification clauses, as do the people whose negligence or gross negligence is excepted from the indemnification. The people for whom the tenant is responsible for damage to the premises show up in the maintenance and repair provisions, the compliance with laws clause, the use provisions and the rules and regulations, the damage and destruction provisions, the insurance provisions, the waiver or subrogation, and the hazardous substances section of the lease.

§ 2.5.1—Who is Who?

The various types of people that play supporting roles or make cameo appearances in a lease include: (1) persons who work for the landlord or tenant in some capacity, such as agents, contractors (more formally known as "independent contractors"), and employees; (2) persons who have the right to use and occupy the premises, such as agents and employees of the tenant; (3) persons who enter upon the premises, such as invitees and licensees, of the tenant, and, if without invitation or permission, trespassers; (4) persons for whose actions the tenant or the landlord should be responsible (again, typically agents and employees, and sometimes contractors, invitees, or licensees); (5) persons for whose actions the tenant or the landlord should not be responsible (such as the employees or agents of the other party to the lease); (6) persons who are indemnified; (7) persons whose actions are excluded from an indemnification obligation; and (8) persons who may succeed to the landlord or tenant's rights or obligations under the lease, such as successors, assigns, heirs, personal representatives, or affiliates.

Agents, Employees, and Independent Contractors

The persons who typically fall into the first two categories — agents and employees, and independent contractors — are persons with whom the landlord or tenant has a contractual relationship. Agents are parties who are authorized to act on behalf of the landlord or the tenant.¹⁷ Officers of a corporation, general partners of a partnership, members in a member-managed limited liability company, and managers in a manager-managed limited liability company are typical examples of an agent.¹⁸ Other examples include property managers (who are agents of the landlord) and real estate brokers (who are often agents for sellers or buyers or landlords or tenants). Employees are people who work for the landlord or tenant for pay and over whom the landlord or tenant exercises a degree of control.¹⁹ They differ from independent contractors in that a landlord or tenant has a contractual relationship with a contractor, but does not exert control over the contractor's performance of its work.²⁰ Plumbers, electricians, and other trade persons who do maintenance and repair work or make alterations upon the premises...