Commercial leasing lawyer Dov Pinchot, a partner at Freeborn & Peters LLP who is not involved in the case, describes it as “very sticky,” because such scenarios usually are not outlined in a lease.
“Generally speaking, leases don't address the specific issue of noise, construction noise especially,” said Mr. Pinchot, co-head of the Chicago-based firm's Real Estate and Land Use Practice Group. “There are clauses set up so a tenant isn't creating any nuisances like odors or noise that will interfere with other tenants in the building, but very rarely do you see that language reciprocated.”
One clause of the lease, although it doesn't directly mention noise, contains language specific enough that it could aid Allscripts' case, said Mr. Pinchot, referring to lease excerpts in the complaint. The clause says the landlord can conduct construction work “during ordinary business hours, so long as (except in the case of emergency) the performance of such work during ordinary business hours does not materially interfere with” Allscripts' access to the property or its ability to conduct business.
Disputes can be resolved by changing the hours the heaviest work is done. The more extreme option is to abandon the space, Mr. Pinchot said.
“The issue you run into with noise is, you haven't lost possession of the premises,” Mr. Pinchot said. “It's not a real eviction type of situation. Tenants will claim constructive eviction. Even though they haven't literally been thrown out of the premises, they effectively can't use it. To trigger that, you have to actually leave the premises. If it's your headquarters or space you need, that isn't easy to do.”
Vornado is giving Mountain View, Calif.-based Google $55.8 million to cover the cost of building out its new Mart space. Google will be the largest tenant in the 4.2 million-square-foot building.
Allscripts sues Merchandise Mart over Google project originally appeared on Crain's Chicago Business.