Mediation and Mitigation of Damages in a Commercial Lease Research Paper

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Lease Analysis1. What is the distinction between a “commercial” and a “residential” lease? In a commercial lease agreement, should the law seek to protect the interests of the commercial tenant more than the interests of the commercial landlord? Why or why not?A commercial lease is a contract drawn up and signed between a commercially zoned property and a business tenant. In other words, the lease is for a business owner to do business in the rented space. The residential lease is a contract between a landlord of a residentially zoned property and a tenant who plans to live there. In a commercial lease agreement, the law should seek to protect the interests of the commercial tenant and the commercial landlord equally (Goldman, 2002). One should not receive preferential treatment under the law over the other, otherwise the transaction is uneven and biased against one party. Unfortunately, landlord and tenant reform is not a new concept and is rather one that has existed for many decades, if not centuries (Lesar, 1960; Trapido, 1978). Any unfair transaction will result in a marketplace that is unstable. Even though there are arguments on both sides—i.e., that it is inhumane to force non-paying tenants out of buildings in the event of an emergency like that of the COVID 19 hysteria, or that landlords have a right to evict non-paying tenants—the matter should be solved with discretion and fairness in a way that is logical and empathetic towards both sides.2. Sections 5 and 6, respectively, impose on the commercial tenant the obligation of making repairs to the leased property, and of making alterations and improvements to the leased property. Should the lease impose these obligations on the tenant, or should such obligations be legally imposed on the commercial landlord? Explain your answer.Whether the tenant or the landlord should be responsible for making repairs to a building is really something that should be discussed prior to signing the contract. If the tenant can make a good case that he will be an anchor tenant in a particular area where there is much space available from the landlord and that the anchor tenant could thus draw more business and more renters to the area, then there is good incentive on the part of the landlord to draw up special terms for the anchor tenant, including offering to address all repair issues (Agrawal & Cockburn, 2003). It is a trade-off worth considering because of the positive impact that having an anchor tenant can have on a complex (Gatzlaff, Sirmans & Diskin, 1994). If the tenant is not going to be an anchor tenant, the incentive to supply these favorable terms is likely to be less. However, considering that so many buildings are now dormant as a result of the rise of ecommerce, landlords may find that they need to offer better terms to renters if they seek to have any business at all. The environment has changed so much in just the past 15 years, that this is one debate that could resolve itself simply because it now appears to be a renter’s market.

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3. In the default provisions of Section 15, what is the landlord’s duty to “mitigate” damages? Should the landlord be required to mitigate? Explain.Landlords are obliged to mitigate damages when a lease is broken. The reason for this…

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…Evaluative mediators will focus on the details, while facilitative mediators will focus on the big picture. Since the mediator is paid by both parties, they have an interest in selecting one that both can agree upon; thus, cooperation is necessary even at the beginning stages of mediation.6. As a businessperson guided by a Biblical worldview, what changes would you make in this lease to make the terms comport more closely to Scripture?1 Corinthians 6 states that Christian individuals should not sue one another but should rather seek to resolve their differences in charity and humility, for this is the Christian way and the spirit that Christ wants His followers to demonstrate and maintain. Thus, it might be worth considering whether Christians should even rely on contracts at all, as they express a certain skepticism or doubt in the integrity of one’s fellow man. However, if one is going to necessitate a contract then it should at least reflect some measure of Christian virtue. Thus, the changes that could be made to the lease so that it comports more closely to Scripture would be that any issues needing to be resolved first be brought before a representative of the Christian faith, in mediation, so that the matter might be resolved in a way that conforms with biblical teaching. As there is no reference in the section on mediation to what type of individual or character the mediator should possess, this is certainly an area where a biblical worldview could be more fully applied to support a more Christian approach to the contract. It would reduce the risk of a purely secular and materialistic approach being taken and would promote….....

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