MORTGAGE OF REAL PROPERTY
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A mortgage is separate from the promissory note usually executed concurrently with a mortgage agreement. The note is the borrower's promise to pay the lender back amounts used to buy the real estate. A mortgage, however, is actually a conditional conveyance of the real estate whereby the borrower holds all title to the real estate while the lender holds a right of foreclosure. The mortgage agreement defines this relationship and the terms and conditions through which the lender may foreclose. literally, "Dead Pledge" under old English law because the mortgage and right of foreclosure does not grant the lender the right to immediate redemption like the right to repossess a car. Rather, the law of equity (fairness) allows the homeowner redemption of his "equity" in the home (what he has paid into it over time) through a foreclosure proceeding. This is regarded as "equity" because before judicial intervention, a lender could take the home upon the borrower's default, sell it, and retain all of the value received while the homeowner kept nothing even though they may have been very close to paying off the note held by the lender.
Legal description of the improved real estate and space being leased.
Borrower promises to pay principal and interest on note.
Borrower promises to pay taxes and other assessments
Borrower promises to pay hazard and mortgage insurance.
The entire amount due for the year should be indicated and broken down into payments for respective months. First month's rent is usually due upon execution of the lease and thereafter in advance on the first day of the month. In many states, commercial rents are subject to the imposition of a sales tax.
Consumer Price Index Increases
This is a popular way of adjusting rent in cases of high inflation. Moreover, this agreement provides for annual increases of at least three percent, but not more than six percent. NOTE: If inflation exceeds six percent, this provision would be harmful to the landlord.
Restrictions on Use
Landlord does not want the business to operate as anything other than what was originally represented. This ensures integrity of ambiance and predictable insurance.
Often, the tenant and landlord share these expenses depending on actual use. For example, many units in a complex have individual meters and the tenant is responsible for each month's use accordingly. However, in other cases, the Tenant may be responsible for his pro-rata share according to the square footage he is renting notwithstanding actual use.
Condition of Premises
No improvements by tenant without express permission of landlord. Often, improvements require approval by the city following an application and notice of improvement by the tenant or landlord. For convenience sake, the landlord will want to retain ownership of any improvements to the space without compensation to tenant. Finally, landlord will want standard provision requiring tenant to keep the space clean and safe, keep all equipment in good working condition, and refrain from making noise or objectionable odors.
Restrictions on Use
Tenant must abide by all laws, rules, regulations, codes, etc. In cases of violation, landlord has right to enter to investigate and/or correct. If a lien is filed on property as a result of tenant, tenant must cancel/discharge the lien and wholly indemnify the landlord with respect to any liens or other encumbrances. Tenant may not maintain any hazardous materials on the premises.
Landlord is generally responsible for maintenance of the exterior walls and roof and all ventilation, plumbing and electrical not otherwise inside the leased space. Interior fixtures must be maintained in good working order by the tenant. Tenant is solely responsible for damage tenant's articles within the leased space.
Landlord reserves option to rebuild. If Tenant is deprived of use by more than 25% casualty, his rent will be abated in proportion to the impairment. No abatement if casualty is direct/proximate result of tenant's own negligence.
Assignments & Subletting
Requires prior written approval of landlord.
Tenant's Duties to Landlord
Indemnification provision related to injury to invitee, licensees and guests.
If tenant does not pay monthly rent after 15 days written notice, landlord may immediately terminate the lease and demand and recover from tenant expenses associated with early termination including actual and compensatory damages, interest and attorney's fees and costs.
Landlord may terminate lease immediately upon notice of tenant's death, bankruptcy, and/or insolvency, or if tenant assigns any interest for the benefit of a creditor. landlord and their successors and assigns may also terminate if the property's ownership changes hands, or if the landlord decides to remodel the property, or if the landlord decided to demolish the building. However, landlord usually provides at least six months advance written notice of such termination due to the anticipated action to avoid having to compensate the tenant.
Tenant makes his lease inferior to any future successor in interest of landlord.
As security guaranteeing payment of rent and performance of covenants. Any default by tenant will be paid out of this deposit, but will not cure the default nor act as a bar to landlord's rights of termination. Assuming no default, the security deposit will be returned in full at the expiration of lease term.
Landlord may, at a reasonable time, access space for inspection and repairs as may be reasonably required.
Security & Alarm Systems
Landlord may provide and charge tenant his pro-rata share. Conversely, tenant may be allowed to install their own system, but landlord should be given proper information and instructions with respect to any third party system.
Landlord provides for minimum amounts of insurance required by tenant from an insurance company approved by the landlord. (General liability with respect to Bodily Injury per person and per occurrence and Property Damage.) Tenant should be required to provide adequate evidence of such coverage in the form of a certificate from the insurance company.
Landlord usually pays this, but this expense is probably included in any operational fees assessed to tenants.
Tenant may extend the term provided they are not in default of payment or other term. landlord must receive written notice of intent to extend the lease. Usually, 90 days or more. landlord should respond within 30 days thereafter.
Federal law requires disclosure to tenants of the lead-paint hazards. landlord should acknowledge the existence or non-existence of such paint and allow the tenant to conduct their own assessment prior to close.
Landlord warrants that the space leased hereunder shall be delivered to the Tenant in full compliance with all municipal, local, state and federal laws and warrants that the space leased hereunder is zoned for and may be utilized for the purposes contemplated herein.
Mediation and Arbitration
Mediation and Arbitration should always specify a convenient location (preferably, in the same county where they run their business). Mediation is a non-binding way to settle the dispute quickly and amicably. If unable to settle in mediation, arbitration is first option available. Arbitration is the preferred alternative to litigation because of speed, cost, and ability to maintain low profile (no info is publicly available).
No Modification or Waiver
No modifications except those specifically agreed upon by the parties in writing. Any waiver of a term or provision will not act as a waiver of any other provision.
This agreement constitutes the entire agreement of the parties and may be modified only in a writing executed by both parties.
Notices should always list the current and best addresses where each party may contact the other for whatever reason.
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