Here’s an outline of the direct examination I’ve used in commercial lease eviction cases at trial representing a landlord. Assume a commercial tenant who has defaulted under a commercial lease and I’ve called the lessor’s property manager to testify concerning the lease, the 5-day notice, the tenant ledger, the lease guarantee and to provide damages testimony.
Necessary documents/exhibits: (1) Lease and Guaranty, (2) 5-day Notice, (3) Tenant Ledger, (4) Management Agreement (contract between owner and property manager that authorizes property manager to collect rents and to prosecute forcible action if tenant breaches lease); (5) Fee petition (assuming lease contains fee-shifting language); and (6) any legally significant correspondence (i.e. a lease termination notice). Obviously, at trial, I often have to deviate from my script but this hopefully provides a useful outline of key topics.
Also – some of the questions are leading and may have to be rephrased. My experience though is most judges give some latitude in the interest of streamlining the examination.
Q: State name
A: “I’m Patricia Property Manager”
Q: Where are you employed?
A: “I’m the Vice President of Leasing for Property Managers, Ltd.”
Q: What are your day-to-day duties?
A: “I handle rent collections and billing for various tenants and am the liaison for tenants on all of our shopping center properties”
Q: Are you familiar with the property that is the subject of this lawsuit?
Q: How so?
A: “The property is one of my assigned assets. I’m in charge of collecting rents for this property and dealings with the tenant”
Q: Where is the property located?
A: “125 Main Street, Store No. 2 S, Pine Acres shopping mall”
Q: Can you describe that property please?
A: “Yes It’s in a strip mall outside of downtown and contains 11 different retail businesses.”
Q: Are you familiar with the tenant and defendant in this case?
A: “Yes, the tenant operates a financial services franchise in Unit 2-S in the mall.”
Q: What is your company’s relationship to Property Owner?
A: “We’re the owner’s property manager”
Q: Is your company authorized to collect rents on this site?
Q: How do you know that?
A: There’s a written management agreement between the owner and our company for us to manage the property
[Show Management Agreement – Ex. 1]
Q: Do you recognize this document?
Q: What is it?
A: “It’s the property management agreement between the owner and us”
Q: have you seen this before?
Q: In what context have you seen this?
A: “This management agreement is part of our lease file. It’s the governing document between us and the property owner/landlord that allows us to manage the property and collect rents”
SHOW LEASE – Exh. 2
Q: Showing you what’s been marked as Exhibit 2 – do you recognize this?
Q: What is it?
A: “It’s the written lease for the property involving the tenant and defendant”
Q: What is commencement date and end date of the Lease?
A: “January 1, 2010 is the start, the end date is January 1, 2020″
Q: Do you recognize the signatures on the Lease?
Q: How so?
A: “The person who signed for the landlord is one of the property owners; the person who signed for the tenant is the president of the tenant’s company”
Q: Do you (or does your company) keep records of rents charged and owing under this lease?
Q: Describe to the court how you track rents
A: “We input them into our computer database and update our internal records with each payment. We regularly send the tenant a regular ledger showing current amounts owed and past amounts paid”
Q: Have you reviewed [Name of Property Mgmt company] books and records pertaining to this Lease and Property
Q: What, in general, do those books and records consist of?
A: “The lease, correspondence, guaranty, tenant ledger, any default notices, etc.”
SHOW 5-DAY NOTICE – EX. 3
Q: Do you recognize this
Q: What is it
A: It’s the default notice we sent to the tenant after it failed to pay rent
Q: Is this the type of document you’ve seen before?
A: Yes. It’s the typical default notice we send out to a defaulting tenant
Q: Do you know how this notice was served on the Tenant
A: Yes – certified mail
Q: Do you know when it was served
A: June 5, 2017
Q: How do you know?
A: Because we received the green card certified mail receipt which showed that the tenant received and signed for the notice on that date
[Note – be prepared to show the certified mail receipt to the witness and argue that it gets in under judicial notice, business record or public record – e.g. print-out from usps site.Q: How much did the Tenant owe on the date of this 5-day notice
Q: Has Tenant made any payments since the date of this notice
SHOW TENANT LEDGER – EX. 4
Q: Do you recognize this?
Q: What is it?
A: It’s the Tenant Ledger
Q: Is this a document you’ve seen before?
A: Yes – it’s the standard ledger we use for all tenants to track lease charges and payments
Q: What information is contained on here?
A: It’s a written itemization of rent payments made and owed as well as other lease charges?
Q: What’s the source of these figures?
A: It’s based on payments received and charges made as entered into our leasing data software program.
Q: Is this prepared and kept in the regular course of [Property Mgr’s] business?
Q: For what purpose?
A: To be able to provide tenant and us with a current statement of amounts due
Q: As Vice President of Leasing who has responsibility for the account with the tenant-defendant, do you have personal knowledge of lease payments due and owing from this tenant as well as payments made?
Q: Is the Tenant current on its lease payments
Q: Why do you give that answer
A: Because the tenant hasn’t paid rent for the past three months
Q: Is the tenant still in possession to your knowledge?
Q: How much does the Tenant owe through today?
Q: How did you arrive at that number?
A: Rent is $5,000 a month, plus late fees and CAM reimbursement
Q: And are those numbers on this tenant ledger
Q: How much does the Tenant owe through the end of the Lease term?
Q: Explain how you calculated that
A: I multiplied monthly rent times number of months left on the lease and added CAM and real estate tax reimbursement charges
GUARANTEE – EX. 5
Q: Showing you what’s been marked as Exhibit 5- do you recognize this
Q: What is it?
A: It’s the lease guaranty signed by Tom Tenant – the company president
Q: Is this a type of document you’ve seen before in your capacity as VP of leasing?
A: Yes – we require personal guarantees from some of our corporate tenants
Q: Did you ever notify the Guarantor that the Tenant was in default under the Lease
A: the same date we sent the notice. We copied Tom Tenant with the notice
Q: have you received any payments from the Guarantor since notifying him of the Tenant’s breach
“Your honor, I move to admit Exhibits 1-5 into evidence. I have nothing further”