Non Disturbance Expert

What is an SNDA?

SNDA = Three-party agreement among Landlord, Tenant, and Lender (landlord's mortgage lender) addressing what happens to tenant if lender forecloses.

Three components:

1. Subordination: Tenant agrees lease is subordinate to lender's mortgage (lender's security interest has priority)
2. Non-Disturbance: Lender agrees not to disturb tenant's occupancy if lender forecloses (provided tenant not in default)
3. Attornment: Tenant agrees to "attorn" to (recognize) lender as new landlord if lender forecloses

Why needed: Without SNDA, if lender forecloses, tenant's lease may be terminated. SNDA protects tenant's right to remain.

The Problem: Subordination Without Protection

Default rule (varies by jurisdiction): If lease is subordinate to mortgage and lender forecloses, lease is wiped out. Tenant must vacate even if tenant paid all rent and is not in default.

Why leases are subordinate:

• Lenders require priority (mortgage must be first-ranking security)
• Landlord needs mortgage financing to build/acquire building
• Lender won't lend if tenant leases have priority (can't deliver vacant possession on foreclosure)

Tenant's risk: Subordination without non-disturbance = risk of eviction through no fault of tenant.

Solution: SNDA provides subordination (lender gets priority) PLUS non-disturbance (tenant can stay if not in default).

When SNDA is Critical

Tenant MUST have SNDA if:

• Long-term lease (>5 years)
• Substantial tenant investment in leasehold improvements ($100K+)
• Major business location (headquarters, flagship store, only location)
• Landlord has mortgage on property (or will obtain mortgage)

Less critical:

• Short-term lease (<3 years), minimal investment
• Tenant can easily relocate
• Landlord owns property free and clear (no mortgage)

Key SNDA Provisions

Subordination

Tenant's agreement: "Tenant's lease is and shall remain subordinate to Lender's mortgage and all renewals, modifications, consolidations, replacements, and extensions thereof."

Effect: Lender's mortgage has priority. If landlord defaults on mortgage and lender forecloses, lender's rights trump tenant's lease.

Broad subordination: Typically subordinate to ALL mortgages (current and future), including refinancings and increases.

Non-Disturbance

Lender's agreement: "If Lender forecloses and becomes owner of the property, Lender will not disturb Tenant's possession and Lease will continue in full force and effect, provided Tenant is not in default under Lease."

Effect: Tenant can remain in possession after foreclosure. Lease survives foreclosure as if lender were landlord.

Conditions: Non-disturbance applies ONLY if:

• Tenant is not in default under lease at time of foreclosure
• Tenant continues paying rent and performing lease obligations
• Tenant attorns to lender as new landlord

Critical protection: Without non-disturbance, foreclosure terminates lease. With non-disturbance, tenant stays.

Attornment

Tenant's agreement: "If Lender forecloses, Tenant will recognize and attorn to Lender (or Lender's successor) as Landlord under Lease. Tenant will pay rent to Lender and perform all lease obligations."

Effect: Tenant accepts lender as new landlord, continues paying rent to lender.

Automatic: Attornment is automatic upon foreclosure (no further documentation required).

Tenant's obligations unchanged: All lease terms remain the same (rent, operating expenses, term, renewal options, etc.).

Lender's Protections

Lender NOT bound by lease modifications: "Lender is not bound by any modification, amendment, or termination of Lease made after date of this SNDA without Lender's prior written consent."

Effect: Landlord and tenant can't amend lease (reduce rent, extend term, add expansion option) without lender's consent. Protects lender from collusion.

Lender NOT responsible for landlord's pre-foreclosure defaults: "Lender is not liable for Landlord's acts, omissions, or defaults occurring before Lender becomes owner. Lender not obligated to perform Landlord's pre-foreclosure obligations."

Effect: If landlord failed to complete leasehold improvements or provide services before foreclosure, lender not responsible. Tenant can't offset against rent owed to lender.

Tenant must notify lender of defaults: "Tenant shall provide Lender with copies of all default notices sent to Landlord. Lender has right to cure Landlord's defaults within [30-60] days after notice."

Effect: Lender has opportunity to cure landlord's defaults before tenant can terminate lease or withhold rent. Protects lender's security.

No offset/abatement against lender: "Tenant shall not offset or abate rent owed to Lender based on Landlord's pre-foreclosure defaults."

Effect: Tenant must continue paying rent to lender even if landlord breached lease before foreclosure.

Tenant's Protections

Non-disturbance is the core protection: Without it, SNDA is one-sided (lender gets subordination, tenant gets nothing).

Tenant's negotiation points:

1. Broad non-disturbance: Protects tenant not just from foreclosure but from lender's exercise of ANY remedy under mortgage (assignment of rents, taking possession, receivership).

2. Lease remains in full force: All lease terms survive (rent, term, renewal options, expansion options, TI obligations, services).

3. No rent increase: Lender cannot increase rent above lease rate.

4. Lender must honor existing amendments: Amendments made before SNDA date (and provided to lender) are binding on lender.

5. Security deposit protected: Lender acknowledges tenant's security deposit and will credit tenant.

6. Lender assumes landlord's obligations: After foreclosure, lender must provide services, maintain building, perform landlord's work (to extent not yet performed).

Standard lender pushback: Lender resists taking on landlord's affirmative obligations. Compromise: Lender must provide services and maintain building, but not obligated to complete incomplete landlord's work (TI, expansions, etc.).

Negotiation Dynamics

Tenant's Leverage

Strong leverage if:

• Large tenant (significant portion of building rent roll)
• Creditworthy tenant (improves building value)
• Long-term lease (provides stable cash flow to service mortgage)
• Lease already in place when lender making new loan (lender must accommodate existing tenant)

Weak leverage if:

• Small tenant (easily replaceable)
• Weak credit
• Short remaining term
• Landlord shopping for financing (multiple lenders available)

Lender's Leverage

Strong leverage if:

• Landlord needs financing urgently
• Few lenders willing to lend
• Property is over-leveraged
• Subordination standard in market

Landlord's Role

Landlord should:

• Negotiate SNDA form with lender at time of obtaining mortgage
• Ensure SNDA form is "tenant-friendly" (strong non-disturbance protection)
• Deliver executed SNDA to tenant promptly

Landlord's incentive: Without SNDA, major tenants won't sign lease or will demand termination right if SNDA not delivered.

Common SNDA Issues

Issue 1: Lender delays providing SNDA Problem: Tenant signs lease conditional on receiving SNDA within 30-60 days. Lender delays 6+ months. Solution: Lease provision - if SNDA not delivered within deadline, tenant has right to terminate lease.

Issue 2: Lender's SNDA form is one-sided Problem: Lender's form provides subordination but weak non-disturbance (doesn't protect tenant from assignment of rents, receivership, etc.). Solution: Tenant negotiates stronger non-disturbance language. Landlord assists (landlord wants lease to close).

Issue 3: Lender refuses to honor tenant's renewal options Problem: SNDA says "lease survives foreclosure" but doesn't address renewal options. Solution: SNDA must explicitly state renewal options survive and are enforceable by tenant.

Issue 4: Multiple mortgages Problem: Landlord has first mortgage and second mortgage. Tenant needs SNDA from BOTH lenders. Solution: Tenant demands SNDAs from all lenders. If second lender forecloses, first mortgage and SNDA with first lender remain in place; second lender's SNDA protects tenant from second lender.

Issue 5: Future financing Problem: Landlord has no mortgage now but may obtain mortgage in future. How is tenant protected? Solution: Lease requires any future lender to provide SNDA in form attached to lease. Landlord breaches lease if can't deliver SNDA within [60-90] days of future mortgage closing.

Drafting Best Practices

Clear non-disturbance language: "So long as Tenant is not in default under Lease, Tenant's possession and rights under Lease shall not be disturbed, terminated, or modified by Lender's exercise of any remedy under the Mortgage, including foreclosure, sale, assignment of rents, or appointment of receiver."

Lease survives with all terms: "If Lender forecloses, Lease shall continue in full force and effect as a direct lease between Lender (or successor) and Tenant, with all terms, conditions, options, and renewal rights intact."

Tenant's cure rights: "Tenant shall have same cure periods under Lease after foreclosure as before. Lender shall provide Tenant with notice of defaults and opportunity to cure."

Security deposit acknowledgment: "Lender acknowledges Landlord has received security deposit of $[X] from Tenant. Upon foreclosure, Lender shall credit Tenant for security deposit amount."

No modifications without lender consent: "Landlord and Tenant shall not modify, amend, or terminate Lease without Lender's prior written consent, which consent Lender may withhold in its sole discretion."

Notice to lender: "Tenant shall provide Lender with copies of all default notices sent to Landlord. Lender shall have [30] days after receipt of notice to cure default before Tenant may exercise remedies."

Subordination vs Non-Subordination

Subordination (standard): Lease is subordinate to mortgage. Lender has priority. Tenant needs SNDA for protection.

Non-subordination (rare): Lease is SENIOR to mortgage. Tenant doesn't need SNDA because lease survives foreclosure automatically.

When non-subordination works:

• Anchor tenant in shopping center (landlord needs anchor lease to attract other tenants and obtain financing)
• Build-to-suit for major creditworthy tenant
• Tenant providing financing or credit support to landlord

Lender's resistance: Lenders usually refuse non-subordination (need priority to foreclose with vacant possession).

Compromise: Subordination + very strong SNDA (effectively gives tenant non-subordination protection).

Practical Tips

For Tenants:

• ALWAYS demand SNDA for leases >3 years with substantial investment
• Review lender's SNDA form carefully (not all SNDAs provide meaningful protection)
• Negotiate strong non-disturbance (survives ALL lender remedies, not just foreclosure)
• Ensure renewal options and other tenant rights survive foreclosure
• Include lease provision: Right to terminate if SNDA not delivered within 60-90 days
• Get SNDA BEFORE making substantial leasehold improvement investment

For Landlords:

• Negotiate tenant-friendly SNDA form with lender at mortgage closing (easier than negotiating later)
• Provide SNDA form to tenant early in lease negotiation (so tenant knows what protection they'll get)
• Deliver executed SNDA promptly (within 30-60 days of lease execution)
• Coordinate among lender, landlord's counsel, and tenant's counsel to execute SNDA efficiently

For Lenders:

• Use standard SNDA form (don't reinvent for each tenant)
• Provide reasonable non-disturbance protection (facilitates landlord's leasing, protects lender's income stream)
• Avoid over-reaching provisions (lender not liable for any landlord obligations) - creates tenant resistance
• Execute SNDAs promptly (delays frustrate landlords and tenants)