The Playbook / Clause 20
Boilerplate Provisions
Miscellaneous / General Provisions; Force Majeure; Notices; Integration; Waiver; Dispute Resolution
“Boilerplate” refers to the general provisions gathered near the end of a commercial lease (notices, force majeure, integration, waiver, construction, and dispute-resolution clauses and their kin) that both sides customarily treat as standard and non-negotiable. They are neither. This entry departs from the standard playbook format: because boilerplate is a family of provisions rather than a single clause, it surveys the provisions most likely to decide a dispute and states the change tenant’s counsel should request for each.
Why Boilerplate Must Be Reviewed and Negotiated
Boilerplate allocates risk precisely because no one reads it. The provisions are drafted by the landlord, survive unexamined because they look standard, and then govern outcomes when something goes wrong; litigators read the “miscellaneous” article first. The COVID-19 shutdowns made the point empirically: force majeure clauses drafted without a thought for pandemics determined whether rent was owed, whether operating covenants were excused, and whether construction deadlines survived.
Boilerplate is also where the landlord form quietly recaptures ground conceded elsewhere in the negotiation. A hard-won rent abatement right can be neutralized by an independent-covenants clause or a tenant-only counterclaim waiver; a negotiated delivery condition can be erased by the merger clause if it appears only in the letter of intent.
The economics favor the tenant who asks. Each requested change costs little at signing and may be case-dispositive later; landlord counsel routinely present the form as “standard,” but the published negotiation materials show both sides trading redlines on these exact clauses. Review of the general-provisions article should therefore receive the same attention as the economic terms, with the provisions below as the checklist.
The provisions covered
Force Majeure
The landlord form typically protects only landlord delays, omits governmental orders and epidemics from the enumerated events, and provides that force majeure never excuses the payment of rent. Some forms exclude “financial inability” in terms that reach tenant-side impacts.
Recommended change: make the clause mutual; include governmental action, epidemics, utility failure, supply-chain disruption, and delay caused by the other party among the events; state expressly how rent is treated so the clause cannot override negotiated abatement rights; and pair any landlord delivery-delay protection with an outside-date termination right for the Tenant.
Notices
Landlord forms restrict valid notice to narrow methods (often certified mail only), run deadlines from dispatch rather than receipt, and omit copies to counsel, so a cure period can expire before the Tenant’s decision-maker knows the notice exists.
Recommended change: permit nationally recognized overnight courier and email with a confirmation copy; make notices effective on receipt or refusal; require simultaneous copies to Tenant’s counsel and headquarters at multiple addresses; and confirm the address-change mechanics work for both parties.
Integration; Merger; No Oral Modification
The merger clause extinguishes every promise not written into the lease: letter-of-intent commitments, broker representations, and leasing-agent assurances about exclusives, allowances, signage, or co-tenancy all disappear at execution, and a no-reliance clause forecloses the fraud workaround.
Recommended change: before execution, audit every landlord commitment the deal depends upon and confirm each appears in the lease or an exhibit; where the deal rests on a factual assurance (zoning, delivery condition, other tenants), convert it into an express representation.
Waiver; No-Waiver; Acceptance of Rent
Landlord forms make non-waiver run one way: landlord’s acceptance of late or partial rent, or its failure to enforce, never waives its rights, while no equivalent protects the Tenant’s course-of-dealing positions.
Recommended change: make the no-waiver clause mutual, and confirm that acceptance-of-rent language cannot convert the Tenant’s payments into admissions or waive pending disputes.
Amendment Mechanics; Inconsistencies
The lease’s amendment clause (typically “this Lease may be amended or modified only by a written instrument signed by both parties”) is one of the few provisions both sides genuinely want. It protects each party against claimed handshake modifications, and tenants should accept it. The negotiation, such as it is, happens at the edges.
Signatory authority. For a multi-location tenant, the real risk is an amendment signed by the wrong person. Provide that an amendment binds the tenant only if signed by a duly authorized officer, and that no employee located at the premises is an authorized officer for that purpose. Confirm the same in reverse: a property manager signing for the landlord should have confirmed authority, or the landlord entity itself should sign.
The clause is not self-executing. In many states a no-oral-modification clause can itself be waived by conduct: parties that behave as though the lease were amended may find a court agreeing. Treat the clause as a first line of defense, not a substitute for papering every change; the related acceptance-of-rent problem is covered under Waiver above.
Recommended change: accept the written-amendment requirement; add the signatory-authority protections; and when an amendment is signed, state expressly that its terms control over the original lease in the event of any inconsistency, and that any “ratification and affirmation” of the lease is subject to the amendment; form amendments are often silent on which document controls.
Jury-Trial and Counterclaim Waivers
The jury waiver usually reads as mutual, but landlord forms pair it with a tenant-only waiver of counterclaims in summary proceedings, forcing the Tenant to pay now and bring its abatement or offset claims in a separate action.
Recommended change: strike the counterclaim waiver, or at minimum preserve compulsory counterclaims; if a jury waiver is retained, confirm it is genuinely mutual and consider its enforceability in the property state (see Differing States’ Treatment below).
Waiver of Consequential Damages
Landlord forms waive consequential damages against the Landlord only, or carve holdover damages out of an otherwise mutual waiver, reintroducing the exposure the Tenant negotiated away in the holdover clause.
Recommended change: make the waiver mutual and coordinate it with the holdover and surrender provisions so consequential exposure is not restored through the back door.
Attorneys’ Fees; Prevailing Party
Landlord forms grant fees to the Landlord alone, define them as additional rent, and leave “prevailing party” undefined, inviting a second dispute about the first one.
Recommended change: a mutual prevailing-party clause with a workable definition (the party obtaining substantially the relief sought, or the net-judgment winner). In some states, there are statutes that make a one-way fee provision reciprocal (see ORS 20.096), but express mutuality remains preferable.
Governing Law; Forum Selection; Dispute Resolution
Landlord forms select the landlord’s home-state law and an inconvenient exclusive forum, and sometimes bury a mandatory-arbitration clause in the general provisions.
Recommended change: the law and exclusive venue of the state where the Premises sit; if arbitration is retained, specify the administering organization, arbitrator qualifications and number, and fee allocation rather than accepting an open-ended clause.
Construction; Contra Proferentem
A “jointly drafted” recital waives the rule that ambiguities are construed against the drafter, a rule that otherwise favors the Tenant, because the Landlord drafted the form. California has codified the rule (Cal. Civ. Code § 1654).
Recommended change: accept a neutral-construction clause only where the lease was in fact heavily negotiated; in a form deal with few tenant changes, delete the joint-drafting recital.
Newer Boilerplate: Energy/LEED Cooperation; Redevelopment Rights
Recent landlord forms add tenant-cooperation covenants for energy-efficiency and LEED programs, and express redevelopment rights that override common-area protections.
Recommended change: cooperation only at no material cost to Tenant, with alternative energy priced comparably to the public utility; redevelopment rights subject to commercially reasonable efforts not to disturb access to, visibility of, or operation of the Premises, with abatement for material interference. Cross-check the Exculpatory Clauses and Relocation entries; redevelopment language often does the work of a relocation clause without its protections.
Other Frequently Overlooked Provisions
Time of the essence. Confirm it runs both ways, and calendar every option deadline it hardens.
Counterparts and electronic signatures. Include an express e-signature and counterparts clause; enforceability rests on the property state’s UETA analogue and E-SIGN.
Brokers. Make the indemnity mutual and limited to brokers claiming through the indemnifying party.
Severability. Acceptable as standard; but worthy of consideration if losing any clause would have a material impact on the economic terms or remaining provisions of the lease.
Captions and headings. Confirm they are excluded from construction.
Relationship of parties. Retain the no-partnership disclaimer.
OFAC and anti-terrorism representations. Accept only knowledge-qualified, mutual versions.
How this typically gets negotiated
Boilerplate is negotiated one line at a time: a deleted jury-trial waiver here, a mutual attorneys' fee clause there. The provisions surveyed below are the ones that most often decide real disputes, and each can usually be improved with modest, targeted edits that a landlord will accept.
The specific language that resolves each of these points depends on the deal. Talk to Paul about your lease →
How the states treat it
Jury-trial waivers: enforceable in most states when knowing and voluntary; California holds predispute jury waivers unenforceable.
Attorneys’ fees: Some states laws convert unilateral fee clauses into mutual ones; but many do not, so ensure it is reciprocal if in doubt.
Self-help and summary-proceeding counterclaim rules vary materially by state.
Notable cases
None
Game film: real clauses from real leases
Excerpts from commercial leases filed as exhibits with the Securities and Exchange Commission, trimmed for length. Follow the citation for the full document on EDGAR.
“FORCE MAJEURE. With exception of obligations to pay money, neither party shall be held responsible for delays in the performance of its obligations hereunder when caused by strikes, lockouts, labor disputes, weather, natural disasters, inability to obtain labor or materials or reasonable substitutes therefor (other than by reason of an inability to pay therefor), governmental restrictions, governmental regulations, governmental controls, delay in issuance of permits, enemy or hostile governmental action, civil commotion, fire or other casualty, and other causes beyond the reasonable control of such party ("FORCE MAJEURE").”
Why it matters. The opening carve-out for obligations to pay money keeps rent flowing no matter what event excuses performance, which is the single most consequential line in a force majeure clause for tenants who assume that a shutdown event abates rent.
“Jury Waiver. Landlord and Tenant each waives trial by jury in any action, proceeding or counterclaim brought by either of them against the other on any matter arising out of or in connection with this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises and/or any claim of injury or damage.”
Why it matters. Both parties give up jury trials on every dispute arising from the lease or the landlord and tenant relationship, a term courts routinely enforce, so tenants should treat it as a deliberate litigation choice and at minimum confirm the waiver is mutual, as it is here, rather than tenant-only.
“Entire Agreement. This Amendment supersedes any prior agreements, negotiations, and communications, oral or written, with respect to the subject matter of this Amendment and contains the entire agreement between, and the final expression of, Landlord and Tenant with respect to the matters treated in this Amendment. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party hereto shall be of any effect unless it is in writing and executed by the parties.”
Why it matters. The merger and no-oral-modification language extinguishes every promise that did not make it into the signed document, so tenants and their brokers must confirm that leasing representations, delivery commitments, and concession letters are expressly incorporated before execution.