“For me, the traps are the things left unsaid”

Marika Skonieczna is a lawyer specialising in commercial real estate, a sworn translator and a painter. On The Office Podcast she talks to Adrian Martinez and Anna Zawrotniak about what tenants fail to see in draft leases, and why the greatest danger often lies in what the lease does not say. (The episode is in Polish.)

A lawyer who would rather call herself a mediator

Marika came to commercial leasing by chance, through a conversation at the gym with a friend who worked for a developer. She stayed by choice: at a law firm she would send documents off without knowing what happened to them next, whereas in-house she saw how leases live on: addenda, extensions, people actually working in the building.

For her, a lease is a living organism, not a transaction. You do not buy once and part ways: you sit in that building for five, seven, ten years. That is why much of her work is about finding compromise, and her favourite question at the negotiating table is: what are you actually afraid of? Very often, once both sides set out their intentions, it turns out they want the same outcome and were only arguing over the wording of the clause.

She does not use the word “win”. A win is a situation in which neither party has exploited its position. With one caveat: drafts come from the landlord and, as a rule, most provisions are written in its favour. For a tenant, negotiation is therefore, as she puts it, a matter of carving out protection step by step.

Two traps: omissions and smuggled-in exclusions

Asked about the traps landlords set, she points to two, and neither is what tenants tend to look for.

The first is omission. A lease rests on two key obligations: the tenant pays rent and charges, and the landlord provides space that works as it is supposed to. Very often the draft says nothing at all about what happens when something is wrong with the space. Entire sections on restricted use are sometimes simply cut, because they lead to rent reductions. The problem is structural: when you receive a lease, you correct what is in it, whereas here you have to work out what is missing.

The second is the exclusion of Civil Code provisions, usually tucked away in the final provisions: “Article X shall not apply to this Agreement.” A non-lawyer walks straight past such a number. The provision most often excluded is Article 664 of the Kodeks cywilny (the Polish Civil Code), which entitles the tenant to a rent reduction where the leased premises are defective. The result: three rooms are flooded, nobody can work in them, and the tenant has no straightforward route to claiming a reduction.

Marika also highlights a clause that leases usually lack, and whose absence works against the tenant: the landlord's statutory right to change the rent unilaterally, leaving the tenant with no remedy other than terminating the lease. Indexation is the accepted practice in commercial real estate, so it is enough to add that, given the agreed indexation mechanism, this right is excluded. Landlords always agree to this; you just have to spot it and raise it.

Rent is not everything

The most common tenant mistake is to negotiate the rate alone. A lease should be a guidebook for the entire time you occupy the building, not a summary of commercial terms. The examples from practice are disarmingly mundane:

• A logo change. The group rebrands worldwide, and the landlord replies that the sign has already been made and the new colours do not suit the rest of the building. Who pays, who decides? If the lease does not say, all that is left is goodwill.
• Fit-out alterations. You submit a request, and the landlord may agree, may refuse, or may not reply at all. In such cases Marika adds a clause stating that no reply within two weeks constitutes consent.
• Repairs during working hours. If you host visitors and your meeting rooms are business-critical, it is worth stipulating that works are carried out after hours.

The takeaway: rather than relying on goodwill, turn grey areas into procedures with deadlines.

“We'll sort it out between us” expires on the day the building is sold

This line comes up in negotiations all the time. Marika has two answers to it. First: if we are going to sort it out, let us put it in writing. Second: buildings get sold, and leases are long. Even without a sale, the team on the other side may be completely different in two years' time.

An example from her practice: a landlord that was excellent to work with sold its building to an Asian fund. From then on, the local management had to clear every consent abroad, in a different time zone, so they began keeping consents and discussions to a minimum. You cannot protect yourself against the sale itself. But the more matters the lease automates or ties to a deadline, the easier they are to enforce later, whoever owns the building.

What really builds negotiating leverage

Marika lists the factors that shape the conversation before the first email is even sent:

• Size of the space and length of the lease: a ten-year lease is far easier to negotiate than a three- or five-year one with a break option. The reason is financial: most buildings are bank-financed and leases are valued. The higher a lease is valued, the more the landlord wants it.
• Occupancy of the building: is the landlord in a hurry, or does it have twelve enquiries for that floor? This is information worth obtaining before negotiations begin.
• Time, which is what landlords sense fastest. A tenant that has to move in within three months negotiates only the essentials. One that is moving only in a year's time and has two other buildings in reserve can afford to push for much more.
• Role in the building: the strongest position belongs to anchor tenants, who take a substantial part of the building and immediately give it a brand and an occupancy figure for the press release.
• Brand strength: a recognisable brand negotiates from a better position, because it is an asset to the building in itself.

Material or minor defect? An expert instead of the courts

Soft clauses generate the most disputes. The classic case: handover of the space after fit-out works. The tenant says the defects are material and the space cannot be used; the landlord says they are minor, will be fixed along the way, and rent is payable from today. What now?

The solution Marika “squeezes in wherever possible” is an expert determination procedure: the lease names in advance the parties who will give an opinion in such a situation, and sets a deadline, for example seven days, after which the opinion is binding. The alternative is the courts, where a hearing can sometimes take two years. As the hosts wryly observe, the lease may have ended by then.

“We can't, because of the bank” and other empty arguments

In her experience, landlords' favourite technique is: “we don't agree, because that's not how we do things”. Marika partly understands this: an entity with several buildings and dozens of leases in each has to manage all of them, and differently worded clauses make that harder. But she has a counter-argument: through the service charge, the tenant pays for professional building management, and part of that is analysing leases and managing the building in line with their terms.

The second argument in this category is “we can't, because of the bank”. Here the picture is more interesting: financing agreements do contain a few points that are genuinely non-negotiable, Marika knows which ones they are, and she does not argue over them. The problem is that landlords, knowing nobody can counter this argument, use it far more widely than it actually applies. In reality it concerns three, perhaps four issues.

Contractual penalties: a deterrent with psychological value

Some landlords include three penalties for the most serious breaches; others include dozens. Marika sees them mainly as a deterrent: in large commercial leases there are professionals on both sides, enforcing penalties can be painful, and when something serious happens the parties sit down and reach a settlement. She cannot imagine pursuing PLN 500 for smoking in a prohibited area under a lease worth millions.

The psychological value remains, however. Anyone who signs a lease and sees that terminating it could mean repaying two million will think twice.

ESG in the lease: filler that can bite

Here Marika herself warns that she is about to be controversial: ESG clauses, like GDPR clauses before them, are mostly filler in today's leases. Everyone knows these provisions have to be there, especially when the landlord belongs to a large corporate group with its own compliance function, and most people skip them in negotiations.

She looks at them from one angle: do they impose excessive obligations? She once saw a lease under which the tenant was effectively required to make its employees cycle to work: not “promote” or “strive for”, but require. An unworkable clause. And it becomes dangerous when combined with termination grounds: if a breach of the ESG provisions allows the lease to be terminated, a landlord with a better offer for the space has a ready-made loophole. That is why she replaces “requirement” with “using due diligence”.

Hybrid work changes what is worth fighting for

In her view, hybrid work is no longer a trend but a reality, and it genuinely changes the substance of negotiations. Marika asks the tenant about its working model at the very start, because the answer determines how tightly breakdowns need to be covered.

A company whose staff can work remotely for two weeks will happily accept fourteen days to fix a problem with the space. A company that works in on-site project teams or uses 3D printers on the premises will not, because it will suffer a real loss. The extreme case is a coworking operator: if it cannot use the space, it not only pays rent but also earns nothing, because it makes that space available to others. In such cases Marika treats the lease more like a hotel agreement than an office lease.

Will AI read your lease for you?

Marika is also a sworn translator, so she has a point of comparison. In translation, which is far more repetitive, artificial intelligence already performs very well: there are fewer commissions, and job adverts increasingly seek not a translator but a reviewer.

In lease law she sees it differently. The course of a negotiation is shaped by a host of factors on both sides (the age of the building, financing, occupancy, time pressure), and the lawyer's mantra remains “it depends”. As she jokes: for artificial intelligence to replace lawyers, clients would have to know what they want. For now, in her view, it is a helpful tool, especially for a tenant who simply wants to understand its lease, but not a replacement.

Three pieces of advice before your first negotiation

• Sit down and list your needs before you start negotiating. Not “we need an office”, but: do we host many visitors, can repairs be carried out during the day, are we planning fit-out alterations, will we sublet, will we register subsidiaries at this address, do we want a right of first refusal on adjacent space, so that we do not end up on the fifth and the twenty-fifth floor.
• List what bothered you in your current office. It is rarely a company's first lease, so experience from the previous one is the best input. Pass this list on to your lawyer and your advisor.
• Do not be afraid to use experts. It is a long-term investment that saves problems at the end. With one caveat: specialisation matters. An in-house lawyer deals with the company's day-to-day business (commercial contracts, personal data) and, as a rule, rarely sees leases. As Marika puts it, you do not see a cardiologist about your eyes.

One more observation from the conversation: in Poland we still go to a lawyer once something has already gone wrong, rather than when it can still be put in writing. And if certain provisions are missing from the lease, not much can be done at the end.

Finally: a ban on selling wet fish

Asked about the most absurd clause she has ever seen, she answers without hesitation: a ban on selling wet fish, in a lease for a cinema. Dried fish, apparently, would have been fine. There is only one suspicion: it was about the smell, and clauses like this usually appear when someone has had a bad experience.

A second example from the same category: a tenant wanted to earn extra income by renting out its office at weekends for photo shoots and filming. The landlord set out in great detail which kinds of productions were excluded. Judging by how hard it pressed the point, this too was born of experience.