Subordination and Distressed Assets

In a real estate market where failing loans are more common than in years past, tenants should be aware of the concept of subordination. Any lease entered into subsequent to a loan being placed on a particular property will be subordinate to that loan. In the event that a lender takes ownership of a property through foreclosure, or other such means, it is under no obligation to honor a lease that commenced subsequent to the loan that was placed on the property. Clearly, the potential impact this could have on a tenant is devastating. Tenants considering entering into a long term lease and/or spending a great deal of money on improvements to a leased property should seriously consider investigating the solvency of the landlord and status of the loan to which their lease will be subordinate. In addition, tenants may want to consider making the receipt of a non disturbance agreement from the lender a condition for entering into a lease.