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

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

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

Conducted on Tuesday, December 3, 2019

Recorded event now available

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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 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 clauses 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 are critical to effectively allocating risk. ISO's 2013 AI endorsement revisions are crucial 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. The 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 relevant issues:

  • How can counsel draft 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?


Johnson, Janet
Janet M. Johnson

Schiff Hardin

Ms. Johnson combines a rare blend of accounting, business and nonprofit board experience with many years as a...  |  Read More

Sattelberger, David
David S. Sattelberger

Schiff Hardin

Mr. Sattelberger concentrates his practice in commercial real estate transactions. He regularly represents developers,...  |  Read More

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