Carve Out Reasonable Right to Scaffolding

It’s important to make sure that your tenant’s lease gives you the right to erect scaffolding. That’s because there may be a point in time when you need to repair, clean, or renovate the façade of the building, or because of local laws or regulations, and you may need to erect scaffolding on the building so workers can do the repair or renovation work. But tenants—especially retail tenants—typically don’t like scaffolding because it can block their stores’ visibility, thus harming their businesses.

Unfortunately, many leases don’t address the owner’s right to erect scaffolding. As a result, if tenants’ businesses decline because of the scaffolding, the tenants might look for ways to retaliate or to get out of their leases. For example, a tenant could argue that the owner constructively evicted it—that is, erecting the scaffolding that harmed its business was tantamount to an eviction—or demand concessions from the owner in return for the business loss. Beware of getting stuck in this situation.

So what exactly should you include in your lease permitting the erection of scaffolding when it’s necessary to repair or renovate your building’s façade? The lease clause should say that if you erect scaffolding on the building because of any construction, maintenance, or repair work, you’ll agree to: (1) perform the construction, maintenance, or repair work within a commercially reasonable time, subject to a force majeure; (2) use “commercially reasonable” efforts to erect the scaffolding in a way that doesn’t materially interfere with the tenant’s access to its space; and (3) install on the scaffolding, at the tenant’s expense, a professionally printed sign furnished by the tenant and reasonably acceptable to the owner. Importantly, the clause should make it clear that the scaffolding won’t change any of the tenant’s lease obligations or be tantamount to a constructive eviction of the tenant.