Commercial leases typically reserve rights in favour of the landlord. This is done to ensure that its investment is protected by allowing the landlord and its agents access to inspect the premises, carry out repairs, and for viewings by potential purchasers.
Broad landlord access rights may not be acceptable to a tenant or be compatible with its security or confidentiality requirements. While landlord rights of access would not in the past have been considered a key commercial term, access protocols are becoming more heavily negotiated.
Preventing inadvertent disclosure of information can be of particular concern to tech companies leasing office space where confidential information or sensitive content will be worked on. Concerns in relation to the visibility of sensitive content from the exterior of the premises are often prioritised by companies working on content moderation for example and may be addressed by obscuring windows or similar measures. Landlord rights of access should be given equal, if not more consideration in these circumstances.
When negotiating a commercial lease, tenants should carefully consider how landlord access rights should be limited. While a tenant may be inclined to seek to restrict landlord access insofar as is possible, a landlord will generally insist on retaining certain access rights to ensure that:
Tenant covenants are being complied with
The landlord may comply with its covenants, and
The value of its investment is protected
Dependent on the outcome of negotiations, tenants should consider including an access protocol in the lease detailing the agreement reached. The provisions that could be included in an access protocol to address tenant security and confidentiality requirements while having regard to access rights generally required by landlords include:
• Notice – the minimum notice period that a landlord is required to provide in advance of access should be documented. Tenants should require that this notice be provided in writing
In the case of particularly sensitive areas within the premises, a longer notice period may be appropriate and/or access could be limited to specific circumstances, such as in the case of emergency only
• Emergencies - landlords will generally require the right to access the entire of the premises without delay in the case of emergency. A clear definition of what constitutes an emergency for this purpose will protect the tenant
• Non-disclosure agreement (NDA) – a tenant may require that the landlord and its agents accessing the premises sign an NDA. This prevents = the disclosure of any sensitive information obtained by the landlord/its agent during its access to the premises
Tenant representative accompanying
Tenants may want to include a requirement that landlord access should only be where the landlord and its agents are accompanied by a tenant representative. save in the case of emergency. This gives the tenant the ability to oversee access and ensure that sensitive information is not inadvertently made accessible to the landlord and/or its agents, and
• Specific requirements – a tenant may have specific requirements regarding access, for example that access is outside core working hours where possible
The above suggestions are not exhaustive and the limitations/restrictions that may be necessary to ensure a tenant’s security requirements are complied with will vary in each case and be specific to each tenant/lease.
Tenants who are processing sensitive or confidential information should consider not just visibility from the exterior of the premises, but also landlord access rights.
Landlord access rights are governed by the lease, and commercial leases typically reserve broad access rights in favour of the landlord. This is so the landlord can inspect the premises and protect its investment. If wide-ranging landlord access rights are of concern for a tenant, it is important that these rights are considered and restrictions on access are negotiated at the outset of the leasing transaction and documented in the lease.
For more information on the above and any other enquiries about commercial leases, contact a member of our Real Estate team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.