Chapter 4 - § 4.6 • COMMON AREAS

• Jurisdiction: Colorado

§ 4.6 • COMMON AREAS

Common areas are any areas covered by the lease that may be used in common by the tenant, the landlord, and other tenants of the building or the property. As such, common areas are not part of the premises. Typical interior common areas in a multi-tenant office lease are the lobby, elevators, corridors, and restrooms. For a full-floor tenant, some or all of these areas are not common areas, but a part of the premises. Typical exterior common areas are the driveways, walkways, landscaped areas, trash enclosures, and parking areas. In a building lease or a land and building lease, some or all of these areas are not common areas, but a part of the premises. Ground leases do not typically have common areas, unless the premises are located in an office or industrial park, in which case the common areas are usually an appurtenant easement.

§ 4.6.1—Landlord's and Tenant's Concerns

The landlord's concern is to have maximum flexibility regarding the common areas. The tenant's concern is to ensure that it has adequate use of the common areas for the entire term of the lease to the extent necessary to have full use and enjoyment of its premises.

§ 4.6.2—Designation of Common Areas by Landlord

What is or is not a common area should be defined in the lease. It is common for leases to state that the common areas are only those areas designated as such by the landlord. This is wise because, as indicated above, what is or is not a common area may change over time, depending, among other things, on what the landlord leases to tenants. Common areas may become premises, and premises may become common areas. A common area may be designated for exclusive use of a tenant with a particular need. In the exterior, changes also may occur. A driveway may become a public right of way. Part of the parking area may become an area designated for the exclusive use of a particular tenant, say, as a site for a drive-up, a generator, a satellite dish, or exterior storage. If the common area is defined in the lease, the landlord may be forced to get permission from existing tenants to make changes to the common area, and getting that consent might be painful.

To avoid having to go to tenants to make changes to the common areas, a landlord typically will reserve in the lease the express right to make changes to the common areas. This typically includes not only the right to add to and take away from the common areas, but also the right to change the use of the common...