Allocating Risk in Real Estate Leases: Contractual Indemnities, Additional Insured Endorsements and Waivers of Subrogation

Structuring Lease Provisions and Coordinating With Insurance Coverage to Mitigate Landlord and Tenant Liability Risks

A live 90-minute CLE webinar with interactive Q&A

Wednesday, October 4, 2017 (in 12 days)
(Alert: Event date has changed from 9/7/2017!)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

This CLE webinar will provide real estate counsel with a review of how parties in leasing transactions can allocate risk to protect their respective economic interests. The panel will address indemnification provisions, including those for actions arising from a party’s own negligence, additional insured (AI) endorsements, and waivers of subrogation under which the parties attempt to protect themselves from economic loss.


Indemnification agreements are widely used to shift risk in a variety of real estate transactions. Real estate leasing counsel must understand the impact of indemnification lease provisions—who is ultimately responsible for the claim, and when and how is this responsibility shared? The indemnitor must negotiate contractual provisions that limit the scope of the indemnification.

The party seeking indemnification must negotiate provisions that address negligence, AI status, and defense of claims. Understanding the relationship between contractual indemnification, insurance requirements, and different AI endorsements is critical to effectively allocating risk. ISO’s 2013 AI endorsement revisions need to be considered when drafting risk-transfer language.

One of the more complex issues in risk mitigation is the interplay, under both property and liability policies, between the insurer’s right of subrogation and the parties’ attempts to waive subrogation. By way of mutual waivers, each party agrees to obtain from its insurer a waiver of the insurer’s right of subrogation against the other party. Counsel must understand and critically analyze subrogation issues in lease negotiations.

Listen as our authoritative panel of real estate attorneys discusses contractual indemnification in real estate leases, and how to reconcile indemnity language with insurance coverage, AI endorsements and waivers of subrogation. The panel will offer best practices for mitigating and allocating risk in real estate leasing transactions.


  1. Indemnification lease provisions
    1. Fault-based vs. “no-fault”
    2. Unilateral vs. mutual
    3. Interplay with insurance
    4. Statutory considerations
  2. Additional insured coverage
    1. Additional insured vs. additional named insured
    2. Endorsements vs. certificate of insurance
    3. Policy language and various additional insured forms
    4. Scope of coverage
  3. Interplay between contractual indemnity and additional insured coverage
    1. Contractual indemnification
    2. Contractual insurance requirements
    3. Additional insured coverage
    4. Crafting contractual indemnification provisions
  4. Subrogation
    1. Overview of subrogation principles
    2. Mutual waivers of subrogation
    3. Limited waivers of subrogation


The panel will review these and other key issues:

  • How can counsel craft effective indemnification lease provisions that protect their clients—whether the indemnitor, landlord or tenant?
  • How can counsel ensure that contractually required AI coverage is satisfied by the named insured’s policy?
  • How have the ISO’s 2013 revisions to AI endorsements narrowed the scope of coverage for AIs?
  • How can counsel draft subrogation waivers that protect both landlords and tenants?


Scott D. Brooks, Partner
Cox Castle & Nicholson, San Francisco

Mr. Brooks has vast experience in all aspects of developer/owner representation, including leasing, acquisitions and dispositions, and joint venture structuring, with a particular emphasis on commercial leasing. Mr. Brooks has extensive experience in the negotiation and documentation of all types of retail leases and has worked with large and small retail developers and operators on leasing matters within regional malls, community shopping malls and mixed-use projects, among others.

Ren R. Hayhurst, Partner
Bryan Cave, Irvine, Calif.

Mr. Hayhurst's practice focuses on all aspects of lender representation, including real estate and commercial loan documentation, real estate loan workouts and foreclosure, receivership and loan/guaranty enforcement litigation. He has negotiated and documented standard and revolving line of credit loans for the acquisition, development and construction has documented and closed loans involving real property security in every State in the country, and negotiated and documented real estate syndication/participation loans and REMIC conduit loan packages. His experience also includes the negotiation and documentation of syndicated and non-syndicated secured and unsecured loan facilities, bond financings, acquisition financings, asset based loan facilities to middle market companies, debt restructurings and letter of credit facilities.

Travis D. Hughes, Of Counsel
Pursley Friese Torgrimson, Atlanta

Mr. Hughes focuses his practice on a wide array of transactions related to commercial real estate, including office leasing, acquisitions, dispositions and foreclosures, and land acquisitions. He represents property developers, investors, and office users. Mr. Hughes’ transactional practice involves negotiating office leases for landlords and tenants, representing high net worth individuals, funds, and companies in the sale and purchase of Class A and B properties, and stewarding office and land closings.

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The speakers knew their topics and spoke in practical terms addressing real business risks.

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Real Estate Law Advisory Board

David A. Barksdale


Ballard Spahr

Jacob Bart


Stroock & Stroock & Lavan

Brian W. Blaesser


Robinson & Cole

Ronald B. Grais


Sugar Felsenthal Grais & Hammer

Ren R. Hayhurst


Bryan Cave

Thomas C. Homburger

Of Counsel

K&L Gates

Susan C. Tarnower


Kilpatrick Townsend & Stockton

Clark T. Thiel


Pillsbury Winthrop Shaw Pittman

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