I just responded to a post in the Commercial Law Insider that related to a post by Ann Lisa Braun, ruminating on the clarity of CAM charges provisions and Operating Expense Pass Throughs in commercial leases. My comment is as follows:
Lisa: My customary response to any CAM provision, when I am representing a tenant is a 3 page canned provision more precisely defining what is and is not included in expenses that can be passed through. It is not unusual that the language that I add is the most hotly contested language for the lease. Whether representing a landlord or tenant in a litigation matter, the CAM charges are the most uncertain of all of the provisions, usually.
From the landlord's perspective, they will want to have their CAM provision written as broad as possible to, as Lisa suggests, pass the kitchen sink through to the tenant. As a tenant, if you do not take care of the lease language up front and pay attention during the lease, you may find that you are sitting right in that sink. Be smart and be diligent. If you are a tenant and you are not sure if you are doing things right, or even if you think you are doing things right, you might want to take a look at the NRTA (National Retail Tenant's Association). This is an association of tenants educating themselves on CAM charges and Building Operating Expenses and diligently reducing their costs as a result. Tell them that Howie sent you.
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