Personal Guaranties: Don't Overestimate the Simplicity of this Instrument

Commercial lenders and landlords are more often looking to borrowers and tenants to sign personal guaranties. A personal guaranty is a legal and binding promise to pay the debt of another person or entity should that person or entity default on the primary obligation. In other words, the individual who signs the personal guaranty will be liable for the debt and payments obligations as if he or she signed the promissory note or lease him/herself.  If you are considering signing a personal guaranty, you should consult one of our Lynnfield corporate attorneys or real estate attorneys to advise you on the various risks and benefits associated with the guaranty.

Guaranties are typically not included in a promissory note or lease agreement itself. Guaranties are contained in separate documents, as notes and leases alone are typically insufficient to create a binding obligation. There are numerous valid defenses to guaranties, which means that if you ever have to enforce a guaranty by commencing litigation against a guarantor, a skilled attorney will be able to uncover flaws that support legal defenses to the guaranty. This means that if the guaranty is not properly (and near perfectly) drafted, then a guarantor may have the opportunity to demonstrate that the guaranty is unenforcable and avoid payment of the debt. If you have questions and concerns about drafting or reviewing a guaranty for enforcability, please contact one of our business - corporate attorneys for a free consultation in Boston or at our Lynnfield office.

Just like mortgages and security agreements (that secure personal property) a personal guaranty serves as collateral so as to secure a loan. Here, the collateral is a promise by a third party to repay the debt should the primary debt obligor default on the promissory note. A personal guaranty drafted by an experienced Massachusetts corporate lawyer can provide strong protection for the financial interests of a lender. However, the viability of a personal guaranty depends on the financial condition and asset holdings of the guarantor. If, for example, the guarantor becomes insolvent or has no assets to satisfy a potential judgment on the promissory note then then collection on the guaranty becomes unrealistic and a lender will end up spending legal fees on a debt that will never be repaid. Therefore, it is important for a lender to perform due diligence on any guarantor prior to entering into this type of contract. 

In Massachusetts Courts, the enforcement of personal guaranties is a common theme of lawsuits on promissory notes. The guaranties are almost always contested by any guarantor with something to lose. Therefore, a pre-printed or template form will cause the lender and note holder to assume a substantial amount of risk that the guaranty will be found unenforcable. If you have questions abut personal guaranties for any loan transaction, please contact one of our business lawyers who advise clients in Eastern Massachusetts on these types of transactions.  NORTHSHORE LEGAL may be reached for a free consultation at 781-463-6063.

Rent, Expenses and Term – Fundamental Components of Commercial Leases

          When entering into a new commercial lease, it is essential that you engage a commercial lease attorney to assist you in reviewing and negotiating the important terms.  This blog article will highlight the most fundamental lease component base rent, expenses that are often passed on to the tenant, and the term of the lease. 

          The most common factor in evaluating the cost of a commercial lease in Massachusetts is the base rent, which is most commonly assessed base on square footage of the rental property.  One should also pay attention to any adjustments in rent per annum.  Once a business owner determines an acceptable rent amount, he/she should consider the rent adjustments and additional expenses that will be associated with renting the space.

          The most common type of commercial lease is the triple net (NNN) lease that will shift the financial burden of property taxes, insurance and common area maintenance (CAMS) and/or operating costs to the commercial tenant. However, triple net leases can also contain additional provisions that expand the scope of tenant financial liability on the leases.  In some cases, commercial landlords may shift the entire burden of property maintenance, repairs, upgrades, and upkeep on the commercial tenant.  This means that the tenant will be responsible for cleaning, snow removal, landscaping, repairs to mechanical systems, and other common every day repairs.  Here, liability may fall on the tenant for the entire building and land, or just a portion thereof, or solely the interior of the property.  In many instances of shared commercial space, commercial landlords will charge the tenant operating costs or CAMS, and maintenance and repairs will be included in the lease.  In this case the tenant will pay its pro rata share of the common expenses, and will not have to bear the entire burden of such expenses.      

           When entering into a new commercial lease, one of the most important features to consider (other than the price) is the term of the commercial lease. In this case, it is important that you consult a Boston area commercial lease attorney to help you with the various issues and considerations that can arise when evaluating a lease term.  In many cases, commercial landlords will offer better rent terms with a longer term of tenancy.  However, this is not a general rule, and a business owner should consider their medium and long term goals for growth prior to committing to a location.  Commercial leases are excessively difficult to avoid for tenants in Massachusetts without significant financial penalty or litigation, so it is best to determine whether the needs and plans for the business align with the term of the proposed tenancy. Additionally, a prospective tenant should conduct significant due diligence prior to entering into a long term lease, including a inspections of the physical condition of the building, assessment of traffic and parking, review of local bylaws, regulations and permit/license requirements, and a review of the surrounding area for its character, propensity for crime, ongoing development, and other features of the area.

            If you are a business owners in Eastern Massachusetts who requires assistance from a commercial real estate attorney that is experienced in drafting, reviewing, negotiation and consulting with clients on commercial leases, you may contact the Law Office of Stefan Cencarik for your leasing needs.  Our commercial lease attorneys are able to help guide you through this process and we can leverage our network of professionals to assist you in evaluating your next business location.