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Most tenants negotiate a commercial lease on the landlord's standard form, which does not state any penalty for delayed possession. Many tenants do not think about the recourse or even the possibility of delay.
First, let's examine why a landlord would be delayed in providing occupancy:
1) An existing tenant in the space has not vacated. In most cases this is due to some kind of delay on relocating to their new space (such as construction taking longer than expected). In this instance the landlord would be receiving an overholding penalty and they may be incentivized to keep getting that bonus rent.
2) There is a delay in the landlord's construction or demolition of the space to make it ready for your occupancy.
What is worse is that for many tenants there costs they have to incur in the meantime, such as paying employees, and marketing and advertising costs.
We recently helped a dentist in Washington, DC. The space she wanted was next to a coffee shop and the landlord was renting out the unit to the coffee shop for extra storage space. The coffee shop committed to moving to a new building to be built, but the construction completion date was not a hard date.
The dentist was in a position to be patient with the space as it was the best option by far in the market, so there were no big costs to incur. However, the way the landlord had worded the lease, he could proceed with the lease as of July 1, or as of January 1 of 2017.
The landlord also wanted the security deposit up front.
Our suggestion was to come up with a formula that would incentivize the landlord to provide vacant possession of the space by imposing a growing penalty.
Here is how it read:
For every month of delayed possession from the Commencement Date, the Landlord shall provide two months of Gross Free rent, to be applied after the existing free rent period as mentioned in clause 2.
We also suggested that the security deposit be altered from being delivered "upon execution of the lease by the Tenant" to "upon possession of the Premises by the Tenant".
Finally, there was a clause indicating that the tenant had the right to cancel the lease but it was 6 months after the original commencement date. We suggested that we shorten that to just two months after the commencement date, which provides a bit more anxiety and incentive for the landlord to ensure the space can be ready as soon as possible.
For your case, you will have to review the lease and see what it says with respect to the landlord's commitment to delivering the premises on time so you can begin fixturing and applying the tenant improvement allowance, and what recourse you have if that does not happen.
If it is silent on these steps and they have not delivered on their promise to deliver possession of the space then your landlord would be default of the lease and the contract would be null and void. You would then have a case to seek compensation from the landlord for what this has cost your business.
Normally these things can be worked out without lawyering up, as long as both parties are acting reasonably. Good luck with resolving this issue and let us know if you need an online commercial lease review company to help you!