Retailers on the ground floor of an apartment building often serve as additional amenities for the renters above. Apartment building owners tout the amenities of retail to prospective renters especially if the uses are related to fitness or food. Yet, both landords and retailers need to understand the potential retail noise and vibration issues and agree on ways to mitigate before a lease is executed. Addressing this issue upfront in detail reduces the chances of renter complaints and litigation later.
We recommend to all our fitness clients considering leasing in a residential buildings to speak with a sound consultant. If hired, the sound consultant will review the space, complete a noise assessment, and create mitigation solutions. A fitness tenant or restaurant who is occupying first floor space with residential units above may have language in their lease similar to the following:
The Tenant has, prior to the Date of Lease, hired a sound consultant to provide sound mitigation construction measures sufficient to prevent audible noise transmission into abutting resident apartments, the Common Area and/or other commercial spaces. Tenant has, prior to the Date of Lease, submitted such sound consultant’s report to Landlord. Such report is attached hereto as Exhibit A, and is hereinafter referred to as “Tenant’s Sound Consultant’s Report”. The final approved Tenant’s Plans shall incorporate the mutually-acceptable noise mitigating improvements recommended by the sound consultant. Landlord reserves the right to disapprove of the submitted Tenant’s Plans if, in Landlord’s sole discretion, additional sound mitigation measures are deemed necessary. Prior to Landlord’s approval of Tenant’s Plans, Landlord reserves the right to have an independent sound consultant (“Landlord’s Sound Consultant”) review Tenant’s Sound Consultant’s Report, and, if reasonably necessary, require Tenant to make additional improvements, based on Landlord’s Sound Consultant’s recommendations, beyond those described in Tenant’s Sound Consultant’s Report (the “Additional Sound Improvements”). Landlord shall notify Tenant (the “Additional Sound Improvement Notice”) of any Additional Sound Improvements and the cost of same. In the event that the cost of the Additional Sound Improvements, as set forth in the Additional Sound Improvement Notice, is in excess of Fifty Thousand Dollars ($50,000.00), Tenant shall have the right, by notice delivered to Landlord within ten (10) days after the date of the Additional Sound Improvement Notice, to either (i) terminate this Lease or (ii) perform the Additional Sound Improvements.
It’s important to have the sound mitigation plan agreed upon by both landlord and tenant before the lease is signed and attach it as an addendum to the lease upon lease execution.