Leases

The Company requires a satisfactory statement from the lessor and lessee that:
a) There are no unrecorded amendments, modifications, or transfers affecting the lease which have not been disclosed to the Company.
b) The lease is current and not in default and there is no breach of any terms of the lease.
c) The current transaction is authorized by the lessor.
The Company requires for its review a copy of the lease and of any amendments, modifications, or assignments. At that time, the Company may make additional requirements or exceptions.
Comment: When insuring a preexisting lease, you should verify that it remains in effect and that the assignment or mortgage is authorized.

Terms and provisions of lease from ____________, lessor, to ____________, lessee, dated ____________ and recorded ____________. The Company requires satisfactory evidence of the termination and surrender of possession of the lease. At that time, the Company may make additional requirements or exceptions.
Comment: If you are informed of an outstanding lease, you must require evidence that it was terminated (e.g., term expired, or forcible detainer) and that the tenant is no longer in possession.

Before the Company will issue a title commitment covering the leasehold estate, the Company must be furnished with an authentic copy of the lease and the memorandum of lease, if applicable. At that time, the Company may make additional requirements or exceptions. Upon approval by the Company, the lease must be executed and the lease or a memorandum of lease must be filed for record.
Comment: When insuring a proposed lease, you must review the lease and require recordation of the lease or satisfactory memorandum of lease.

If a Leasehold Policy is not issued, a Leasehold Policy Modification Endorsement will be attached to the Policy.
Comment: If you insure a lease, you must either issue a Leasehold Policy or attach the Leasehold Policy Modification Endorsement to the Policy. The endorsement defines the Leasehold Estate and adds damage provisions.

The following provision is added to paragraph 1 of the Conditions and Stipulations of this Policy: “‘Leasehold Estate,’ the right to possession for the term or terms described in Schedule A hereof subject to any provision contained in the lease, which limit such right of possession.”
Comment: If you insure a lease on a standard ALTA Owner’s or Loan Policy and you do not attach the Leasehold Policy Modification Endorsement, you should add this definition to the Policy and the commitment.

(a) Proof is required to show that such lease has not been assigned, altered, modified or amended previously, except as shown in this certificate; that said lease is in full force and effect and that no defaults now exist in relation thereto;

(b) An estoppel certificate is required from the owner of the fee and from the holders of all subordinate interests therein;

(c) Policy will except all the terms, covenants, conditions, provisions and agreements contained in said lease being assigned; [Add where applicable: as modified, altered or amended by agreement dated __/__/__, made by and between __(name)__ and __(name)__;]

(d) The assignment of lease to be made should contain the covenant required by the Lien Law, and such covenant must be absolute and not conditional.

(a) the lessee, certifying the amount remaining unpaid on the leasehold mortgage to be assigned, and
(b) the lessor, certifying that the lease remains in full force and effect, that there are no present defaults by the tenant under the lease.

Note: You may add additional local requirements here. Please consult with our underwriting personnel in preparing appropriate provisions.

Terms and provisions of a lease dated ____________, executed by ______________ as lessor and ______________ as lessee, recorded ____________.
Comment: This exception should be used if a recorded lease remains in effect or if the Company insures that lease.

Terms and provisions of a lease dated ____________, executed by ____________ as lessor and ____________ as lessee a memorandum of which is recorded ____________.
Comment: This exception should be used if a recorded lease (memorandum) remains in effect or if the Company insures that lease.

Terms and provisions of a sublease dated ____________, executed by ____________ as sublessor and ____________, as sublessee, recorded ____________.
Comment: This exception should be used if a recorded sublease remains in effect or if the Company insures that sublease.

Terms and provisions of a sublease dated ____________, executed by ______________ as sublessor and ______________ as sublessee a memorandum of which is recorded ____________.
Comment: This exception should be used if a recorded sublease (memorandum) remains in effect or if the Company insures that sublease.

Terms and provisions of a lease dated _____________, executed by _____________ as lessor and ____________ as lessee, as disclosed to the Company.
Comment: This exception should be used if you are informed of a specific unrecorded lease. To insure that lease, you must require that the lease or memorandum be recorded.

Terms and provisions of a lease dated _________, executed by _____________ as lessor and ______________ as lessee as disclosed by a(n) ______________ recorded ________________.
Comment: The Company prefers to use this exception if an instrument (such as an assignment of leases to a mortgagee) discloses a specific unrecorded lease.

A document recorded ____________ declaring a modification or amendment of the lease recorded or disclosed by instrument recorded _________________.
Comment: Use this provision if the excepted lease is modified.

A document entitled _____________ recorded __________, provides that the lease recorded or disclosed by instrument recorded ______________ is subordinated to the _________, that was recorded ______________.
Comment: This is the preferred exception to a non-disturbance agreement affecting a lease. This exception should be used if the lease is described in Schedule B, Part II of the Loan Policy (as subordinate).

Terms and provisions of a subordination, non-disturbance and attornment agreement recorded _________.
Comment: This exception to a subordination of a lease is used if the lease is described in Schedule B of an Owner’s Policy or Schedule B, Part I of the Loan Policy. Use the alternative subordination language of LEA37 if you describe the lease in Schedule B, part II of the Loan Policy or if the Policy insures that the lease is subordinate.

The lessee’s interest, under the lease recorded disclosed by instrument recorded _______________ has been assigned to _______________ by assignment, recorded ____________________.
Comment: Use this provision in describing an assignment of an excepted lease.

The lessor’s interest, under the lease recorded or disclosed by instrument recorded _________, has been assigned to __________, by assignment, recorded ______________.
Comment: Use this exception if the lessor’s interest is assigned..

An assignment of rents and leases, executed by ______________, to ___________, recorded __________________.
Comment: The Company prefers not to refer to the assignment of rents to a mortgagee in Schedule A. You should place it in Schedule B (e.g., Part II) or in a note of the policy to the insured lender.

Rights of tenants in possession.
Comment: If you delete the standard parties in possession exception, the Company prefers this exception if there are tenants. This exception would include any rights (e.g., options).

Rights of parties in possession.
Comment: Use this exception unless you determine the names of those persons in possession, if any, and you except to their rights. If a mortgagor remains in possession after foreclosure, consult with the Company.

Rights of tenants in possession as tenants only under unrecorded leases.
Comment: If you determine that the tenants have no options or rights to purchase, you may use this tenants in possession exception.

Rights of tenants in possession, as tenants only, under the following leases:
Comment: If you determine that only specific listed tenants exist and that they have no options or rights to purchase, you may use this tenants exception.

Any defect, lien or encumbrance or claim that the Title is vested other than as insured, resulting from a claim or determination that any, or all, of the following documents, either jointly or severally, should be or has been recharacterized as a mortgage or as a loan transaction:
1) Deed from ________ to ________, dated __________, recorded ____________.
2) Lease from _________ to ________, dated _________, recorded ____________.
3) Option from ________ to ________, dated _________, recorded ____________.
Comment: A sale leaseback or lease with option to purchase or repurchase option may have many of the features of a mortgage transaction. If you insure such a transaction, consult the Company for consideration of this exception.

Terms and provisions of an option or right of first refusal, as contained in the lease recorded ______________.
Comment: Do not insure an option to purchase unless you secure the Company’s approval. Options to purchase may evidence a recharacterization issue, especially in a sale-leaseback.

Any right, Title or interest to the buildings, structures and other improvements located on the Land, with the right to maintain and use the Land, together with access and support as disclosed by document(s) recorded ______________________.
Comment: The ownership of improvements is sometimes severed in connection with a ground lease. If so, the insurance of the land must except to the improvements and right of access and support.

Any failure to comply with the terms, provisions and conditions of the lease, recorded ____________.
Comment: This exception should be used if a recorded lease remains in effect or if the Company insures that lease.

Any failure to comply with the terms, provisions and conditions of the lease, disclosed by document, recorded _______________.
Comment: This exception should be used if you are informed of a specific unrecorded lease. To insure that lease, you must require that the lease or memorandum be recorded.

Terms and provisions of the lease from ____________, lessor, to ____________, lessee, dated ____________.
Comment: This exception should be used if you are informed of a specific unrecorded lease. To insure that lease, you must require that the lease or memorandum be recorded.

Terms and provisions of a subordination, non-disturbance and attornment agreement, executed by _____________, lender ________________, owner ___________________.
Comment: This is the preferred exception to a non-disturbance agreement affecting a lease. This exception should be used if the lease is described in Schedule B, Part II of the Loan Policy (as subordinate).

Any claim that the vesting of title in the insured is part of a loan transaction or that the deed to the insured and/or the lease referred to in Schedule B, constitutes a mortgage or other security device.
Comment: A sale leaseback or lease with option to purchase or repurchase option may have many of the features of a mortgage transaction. If you insure such a transaction, consult the Company for consideration of this exception.

The leasehold estate created by the lease from ___________, lessor, to ____________, lessee, dated ____________, a memorandum of which is recorded ____________, said lease having a term of ____________ years from ____________ and an option to renew for a term of ____________ years from ____________.
Comment: This is the appropriate description of the insured lease (memo) in Schedule A if it contains options to renew.

The leasehold estate created by the lease from ___________, lessor, to ____________, lessee, dated ____________, a memorandum of which is recorded ____________, said lease having a term of ____________ years from ____________.
Comment: This is the appropriate description of the insured lease (memo) in Schedule A if it contains no options to renew or the options are not described.

The leasehold estate created by the lease from ___________, Lessor, to ____________, Lessee, dated ____________, recorded ____________ and said lease having a term of ____________ years from ____________ and an option to renew for a term of ____________ years from ____________.
Comment: This is the appropriate description of the insured lease (full copy recorded) in Schedule A if it contains options to renew.

The leasehold estate created by the lease from ___________, lessor, to ____________, lessee, dated ____________, recorded ____________ said lease having a term of ____________ years from __________.
Comment: This is the appropriate description of the insured lease (full copy recorded) in Schedule A if you do not describe options to renew.

Amended or modified by the instrument recorded ____________.
Comment: This is the appropriate description of a modification of the insured lease in Schedule A.

Assigned to _____________ by the instrument recorded ___________.
Comment: This is the appropriate reference to an assignment of the insured lease. You must verify with the lessor that the lease is in effect and that the current transaction is authorized.