'Deem' the Square Footage Numbers in Your Lease

Ideally, you’ll want to keep square footage and dimensions out of your lease or attached floor plan because those numbers can easily become the focus of a dispute. But you may have to include square footage or dimensions in certain circumstances—for example, if you’re dealing with a highly desirable prospective tenant that demands this inclusion, or the fixed rent or a rent escalation is governed by a formula that includes the square footage number.

Fortunately, there are protective changes you can make to two standard lease clauses. These changes can help shield you from a misrepresentations claim by the tenant if the square footage or dimensions you include are wrong.

Agree to Agree on Measurements

When describing the premises in the lease, say that the space is deemed to be a certain square footage for purposes of the lease. This wording means that you and the tenant have agreed to consider the space a certain size, no matter what the actual size is. If the space later turns out to be smaller than the agreed upon size, the tenant can’t claim you misrepresented the square footage. To “deem” square footage for the space, ask your attorney about including the following language when you draft the lease clause describing the premises.

Model Lease Language

For purposes of this Lease the rentable square footage area of the Premises shall be deemed to be [insert #] square feet.

Use Safeguard in Merger Clause

But even with the “deemed” language written into your lease, a tenant may still accuse you of making an oral misrepresentation—that is, promising in conversation that the deemed numbers you put in the lease are, in fact, accurate measurements. That’s why you should consider safeguards against oral misrepresentations claims or claims that the tenant relied upon other pre-lease information. Add the following language to the standard “merger” clause in the lease. (That’s the clause which says that the lease is a complete integration of all prior agreements and that you haven’t made any representations or promises outside the lease.) Add that you haven’t made any representations or promises as to the size of the space or the building.

Model Lease Language

Tenant acknowledges and agrees with Landlord that, except as may be expressly set forth elsewhere in this Lease, neither Landlord, nor any employee of Landlord, nor other party claiming to act on Landlord’s behalf has made any representation, warranty, estimation, or promise of any kind or nature whatsoever relating to the physical condition of the Building housing the Premises or the land under the Building, including, by way of example only, the fitness of the Premises for Tenant’s intended use or the actual dimensions of the Premises or Building.

Then ask the tenant to acknowledge that it’s had a chance to measure the space—and that the stated square footage in the lease will be binding.

Model Lease Language

Tenant hereby represents and warrants to Landlord that Tenant has made its own investigation and examination of all the relevant data relating to or affecting the Premises and is relying solely on its own judgment in entering into this Lease; specifically and without limitation, Tenant represents and warrants to Landlord that Tenant has had an opportunity to measure the actual dimensions of the Premises and Building and agrees to the square footage figures set forth hereinabove for all purposes of this Lease (except in the event of a condemnation or casualty that decreases the size of the Premises and/or Building as more fully provided elsewhere in this Lease).