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

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, October 4, 2017

Recorded event now available

or call 1-800-926-7926
Program Materials

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.

Description

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.

READ MORE

Outline

  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

Benefits

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?

Faculty

Brooks, Scott
Scott D. Brooks

Partner
Cox Castle & Nicholson

Mr. Brooks has vast experience in all aspects of developer/owner representation, including leasing, acquisitions and...  |  Read More

Hayhurst, Ren
Ren R. Hayhurst

Partner
Bryan Cave

Mr. Hayhurst's practice focuses on all aspects of lender representation, including real estate and commercial...  |  Read More

Hughes, Travis
Travis D. Hughes

Of Counsel
Pursley Friese Torgrimson

Mr. Hughes focuses his practice on a wide array of transactions related to commercial real estate, including office...  |  Read More

Other Formats
— Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

$297

Download

$297