If you`re a lender, you have just as many reasons to want an SNDA. Depending on when the lease was signed and what the lease says, the mortgage may not give you a first full pledge on the property. Although the lease provides that the tenant`s rights are subordinated to all current and future mortgages, this subordination often depends on the tenant being provided with an SNDA acceptable to the lender. And if the lender eventually takes over the property, many NDSs provide that the lender is not responsible for certain past or future obligations of the owner. How does the SNDA do all this? Subordination, non-disturbance and attornation are closely related concepts. Subordination is the tenant`s agreement that his interests in the lease are subordinated to those of the lender. Of course, in many situations, the mortgage is already higher depending on when the mortgage was taken out and when the lease was taken out or when the tenant took possession of the property. But the lender will want to ensure that its priority will not be lost if the loan documents are changed, and both the lender and the lessor will want to protect the lessor`s ability to refinance with another lender. In the subordination clause in an SNDA, the tenant undertakes to have his interest in the property subordinated to the interests of a third-party lender. The landlord may want to use the commercial property to provide financing after entering into a lease with a tenant. As a result, most lenders would require all tenants to subordinate their shares of inheritance tax to the lender`s mortgage interest. The subordination clause allows the third-party lender to terminate the lease agreement in the event of commercial performance.
A non-disruption clause or agreement gives the tenant the right to continue to occupy the leased premises as long as he is not in default. The tenant can also rent the premises after the sale or enforcement of the property. The non-disruption clause supports the tenant`s rights in the premises, even if the landlord does not comply with mortgage obligations and the property is forcibly seized. The “non-disruptive” part of the agreement, also known as the “right to silent enjoyment,” is exactly as the name suggests. In entering into an SNDA, the lender agreed that, upon the sale of the leased business property, the lender or other buyer “does not disrupt” the tenant`s lease agreement through a forced sale as long as the tenant is not late and such a lease would continue as if performance had never taken place. A year later, in a case involving another lease, the Ohio Supreme Court found that certain languages of that lease made the hull automatic. Liberal Savings & Loan Co. v. Frankel Realty Co. (1940), 137 Ohio St. 489, 30 N.E.
2d 1012. The opinion of Liberal Savings & Loan Co. also suggested that modern legislative changes render the entire doctrine of attornment obsolete, even without the specific attornment language in the lease agreement. Most modern leases also require the tenant to keep the mortgage taker, the buyer upon enforcement, and any other person who follows in the landlord`s interest. Non-disruption, as the name suggests, does not disrupt the lender`s promise, the tenant`s right to occupy the premises in the event of a mortgage lockout. In many states, including Ohio, the enforcement of the mortgage automatically terminates the lease unless the lease is greater or the mortgage holder has expressly agreed that the lease will survive. Non-disruption agreements are usually combined with the tenant`s confirmation of their subordination and provision obligations in an SNDA. .