Chapter 4 - § 4.8 • OTHER AREAS INCIDENTAL TO THE PREMISES

• Jurisdiction: Colorado

§ 4.8 • OTHER AREAS INCIDENTAL TO THE PREMISES

In addition to the premises proper, a tenant may need other space in the building or on adjoining land in order to conduct its business in the premises. The question of whether the tenant has any additional space requirements always should be posed to the tenant's facility manager before entering into a lease. Examples of additional areas to be covered in a lease include lobby space, electric generator space, rooftop and antennae space, railroad tracks, loading/unloading areas, trash enclosures, wet and dry utility chases, direct access to utilities in the street, interior and exterior storage areas, vaults, overhangs, and sidewalk space. Each of these is discussed in detail below.

§ 4.8.1—Lobby Space

Occasionally a tenant wants space in the lobby of the building that is incidental to its premises. The tenant may use the space for a reception area or security guard desk, separate from the one serving the building, if any. The landlord generally will allow this use only if it does not detract from the building as a whole. The lease should address at least the following issues relating to the lobby space: cost, term, location, permitted improvements, and permitted use. The landlord will want to reserve the right to impose rules and regulations. The landlord may want to reserve the right to terminate the use at its discretion.

§ 4.8.2—Electric Generator Space

Occasionally, a tenant requires a backup electric generator for its business. While buildings generally have their own backup electrical systems, some tenants, want their own electrical backup. For data centers or computer operations, backup generators are a must. Finding an appropriate location for a backup generator is not always easy. Generators are large, heavy, and somewhat noisy. A lease clause providing for an electrical generator should address the cost, term, location, access, fuel use, and storage of the generator. Floor load limits are sometimes an issue, as are OSHA requirements and fire and other life-safety issues. If a large fuel storage tank is required, the potential for fires, explosions, spills, and environmental damage will be issues of concern.

The clause typically will disclaim any liability of the landlord relating to the generator and will include an indemnification from the tenant. It will require compliance with local laws in its placement, use, and operation. It may require noise mitigation. A difficulty sometimes arises in negotiating a lease clause relating to a generator because the landlord wants to retain the right to terminate the use of the generator without giving the tenant the right to terminate its lease. Without its generator, however, the tenant may be out of business. The generator becomes the "tail that wags the dog." Sometimes, if the landlord cannot get comfortable with the potential impacts of the generator, the generator will break the deal.

§ 4.8.3—Rooftop Space and Antennae

Few things are more bothersome and have as great a potential for wreaking havoc as a leaky roof. A landlord typically is very protective of the roof of the building. A lease typically provides that a tenant has no right to use the roof, and may not go onto the roof. At the same time, rooftop space has become very valuable, especially as a location for telecommunications equipment. Often a tenant will lease space in a building only if it can use the rooftop for an antenna, a satellite dish, or some other equipment that cannot be housed in or near the building.

The use of rooftop space raises so many legal and practical issues that whole books and many articles have been written about it.¹⁵ Often, the use of the rooftop is addressed not in the lease itself, but in an entirely separate rooftop license. For an example of a rooftop license, see Form 6, "Rooftop Equipment License" in Appendix A.

Checklist for Rooftop License

The issues that are typically addressed in a rooftop license include:

[ ] Term of the rooftop license.
[ ] Additional rent for the right to maintain equipment on the roof and the terms for payment.
[ ] What equipment is permitted.
[ ] Location of the equipment.
[ ] Landlord's right to relocate the equipment.
[ ] Tenant's obligation to screen the equipment to prevent unsightliness and to mitigate noise impacts

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