Reduce Crime by Limiting After-Hours Access to Your Building or Center

After-hours crimes—such as burglaries and vandalism—against tenants are a growing problem. These crimes—which are often committed by delivery people, contractors, and even tenant employees who have unmonitored access to the tenant's space after hours—could push up your insurance rates and make it harder for you to attract and keep tenants. They could also trigger lawsuits against you by tenants whose space or merchandise is damaged by a burglar or vandal.

You may already be taking steps to prevent after-hours crime. But if your lease is like many we've seen, it may be missing a key protection: It doesn't give you the right to limit after-hours access to your building or center. So your efforts to prevent criminals from getting into your building or center after hours could be seriously undermined.

To plug this loophole and give yourself additional protection, add four safeguards to your lease, says New York City attorney Gary A. Goodman. Two of the safeguards will help you control after-hours access so you can reduce the risk of crime (you can, instead, put these two safeguards into your building's or center's rules and regulations). The other two safeguards will help you limit your liability for after-hours crimes that do occur, says Goodman. There's a Model Lease Clause on p. 6 that you can adapt and use that has these safeguards.

Two Ways to Reduce Risk of After-Hours Crimes

To reduce the risk of an after-hours crime occurring at your building or center, add the following two safeguards to your lease:

Deny access to unauthorized parties. Get the right to deny after-hours access to your building or center to anyone in the following two categories, Goodman says:

• Not recognized by your security personnel as an employee, agent, or subtenant of the tenant or a building employee; or

• Without a building identification card or after-hours visitor pass [Clause, par. a].

This gives you and your security personnel the power to keep strangers and unauthorized people out of your building or center, Goodman explains.

Practical Pointer: If you haven't yet distributed employee identification cards or after-hours visitor passes to your tenants, consider doing so as soon as possible, says Goodman. These cards and passes offer you an easy way of controlling who can have after-hours access to your building or center, he says.

Require after-hours registration. Get the right to require that everyone who enters and leaves the building or center after hours must register with your security personnel, says Goodman [Clause, par. b]. A registry that lists the visitor's name and check-in and checkout times will help your security personnel keep track of who's inside your building or center at any particular time, he explains.

Limit Your Liability

You can't stop third parties from suing you if they're injured after hours by someone in your building or center, warns Goodman. But you can protect your wallet in other ways. For example:

Make tenant pay for actions of its visitors, agents, employees, and subtenants. Make the tenant agree to be liable if any of its visitors (or its agents, employees, and subtenants) cause harm to the building or center or to anyone inside the building or center, says Goodman [Clause, par. c]. So, for example, if a tenant's visitor rips the furniture in the lobby, the tenant must pay for the furniture repair, he explains.

Practical Pointer: Make sure your lease's indemnification clause requires the tenant to indemnify—that is, defend reimburse and you—if you're sued by a third party in connection with any incident at your building or center caused by something the tenant or its visitors did or failed to do, says Goodman.

Make tenant agree not to sue you. Require the tenant to agree not to sue you if you—or your security personnel—let someone enter the building or center after hours who harms the tenant, says Goodman [Clause, par. d]. Without this protection, the tenant could sue you for its injuries, he warns.

Practical Pointer: Expect a savvy tenant to demand that you remain partially liable. It will want to be able to sue you for harm it suffers from a visitor that you or your security personnel knew or should have reasonably suspected was a safety risk but let into the building or center anyway, says Goodman.

CLLI Source

Gary A. Goodman, Esq.: Partner, Sonnenschein Nath & Rosenthal, 1221 Ave. of the Americas, 24th Fl., New York, NY 10020; (212) 768-6916.