Please Take Out the Garbage

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A shopping center landlord client has had some difficulties with one of his tenants recently. The tenant, a bagel shop and restaurant, and the largest tenant in the small suburban strip center, is not maintaining the area surrounding the restaurant very well.  The corridor that the tenant utilizes to accept deliveries to the restaurant and to haul trash to the dumpster is stained with cooking oil and grime.  Tenant, though obligated to pressure clean, paint and maintain the area, has failed to do so.

In addition, the tenant has an out door seating area. The shopping center is designated as tobacco free/no-smoking.  This is contained in the lease there are signs posted around the center.  However, tenant permits his employees and customers to smoke and they use shopping center planters as ash trays.  Consequently, the planters are filled with cigarette butts.

There are other issues between the landlord and the tenant, but the most difficult problem is garbage. Tenant has been causing both the waste and recycling dumpsters to overflow.  All the other tenants are small retail or office and generate little trash.  And, from the type of trash in the dumpsters, it is very easy to identify the cause of the over flow.  Therefore, several months prior, tenant requested that landlord 1) upsize the waste dumpster from a 2 yard dumpster to a 4 yard dumpster, 2) increase pickups from weekly to 4 timers per week, and 3) obtain a 2nd 2 yard recycling dumpster.  Landlord made the changes and increase tenant’s CAM charges accordingly which Tenant paid for 2 months.  For whatever reason, Landlord to slide back to the prior CAM amount for the remainder of the year.

In an effort to get the shopping center cleaned up, landlord recently required that tenant fulfill its lease obligations and maintain the premises and surrounding areas and enforce the no-smoking policy. In addition, landlord sent a new CAM statement reinstating the increase in CAM charges.  Several days later, tenant’s attorney responded.  Funny thing is, there was no objection to the requested maintenance.  There was a question about the no-smoking policy which was quickly put to rest.  Tenant and its attorney strongly object to pay any increase in CAM charges for garbage pick up.

I can’t figure out if tenant has selective amnesia regarding the requests for additional services or if tenant believes it does not generate an inordinate amount of garbage as compared to the other tenants in the shopping center. We have provided the attorney with copies of the invoices to show the charge is a straight pass-through without up charge and corresponds with the services that were requested and agreed to.  I have provided the e-mail correspondence between landlord and tenant regarding change of service.  The attorney has acknowledged that the lease is NNN.  The extra service and capacity, even if not specifically requested by tenant is necessary because of tenant’s use.  All of the other tenants are gross leases.  So why do tenant and tenant’s attorney think that they don’t have to pay for their own trash pick up?

My mother and grandmothers always told me to clean up my mess. My father always had me take out the trash as soon as I was old enough.  This is good advice for this tenant.

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