Commercial Leases and Title: 7 Records Counsel Should Pull

Lease review tends to stay inside the four corners of the lease. That is where the negotiated risk lives, so it is a reasonable instinct, and it leaves out something structural: a tenant is contracting for the use of real property with whoever the record says owns it, and taking a leasehold that sits behind whatever the record already shows. Neither of those facts is in the lease.

For a tenant investing in a build-out, or a lender financing one, the title picture is not background. It determines whether the lease survives a foreclosure and whether the party signing as landlord can actually deliver what they are promising.

Two questions the lease does not answer

Can this landlord grant this lease? The entity on the signature block is frequently not the entity on the deed. Property is held in a single-purpose LLC while the management company negotiates, or title moved in a reorganization nobody updated the letterhead for. A lease signed by an entity with no recorded interest is a problem whose difficulty depends entirely on facts outside the document.

Where does the leasehold sit? A lease is an interest in real property, and it takes its place in the same priority ordering as everything else. A mortgage recorded before the lease generally has priority over it, which means a foreclosure can extinguish the leasehold. That is the exposure a subordination, non-disturbance and attornment agreement exists to manage, and whether one is needed is a question about recording dates.

How these doctrines apply is governed by state law and by the specific instruments, and lease recording practice varies: many jurisdictions record a short-form memorandum of lease rather than the lease itself, and some tenants never record anything.

Seven records to pull

1. The vesting deed for the landlord entity

Confirm the record owner’s exact name, and compare it against the signature block. A mismatch is not fatal but it is a question that needs an answer before execution.

2. Every recorded mortgage and deed of trust, with dates

These establish whether the leasehold will sit ahead of or behind existing financing. The dates are the analysis, the same way they are in lien priority generally.

3. Any recorded SNDA, and any prior memorandum of lease

A recorded SNDA from a previous tenancy tells you the lender’s posture. A prior memorandum may reveal a competing or overlapping leasehold nobody disclosed.

4. Recorded easements and access rights

Parking, loading, signage, and cross-access on a multi-parcel site frequently depend on easements recorded against a neighboring parcel rather than the demised one. A landlord cannot lease access it does not hold.

5. Restrictive covenants and use limitations

A recorded covenant can prohibit the tenant’s intended use outright, and it binds regardless of what the lease permits. This is the same category covered in what a restrictive covenant is, applied to a use the tenant is about to spend money on.

6. Judgments, tax status, and mechanic’s liens against the landlord

A landlord under financial pressure is a landlord whose property may be heading toward foreclosure, and the record is where that becomes visible before the rent checks stop being deposited.

7. An update before execution and before funding a build-out allowance

Two moments, not one. Between letter of intent and execution, and again before any tenant improvement money moves.

What the record will not tell you

A title search reports what has been recorded in the county searched, as of the date searched. It does not establish:

• Whether an unrecorded lease exists on the same space
• Whether the landlord’s entity is authorized internally to sign
• Whether an SNDA will be granted, or on what terms
• Whether the tenant’s intended use complies with zoning

The last one is worth flagging to clients specifically: zoning and permitting sit with the municipality, not the recorder, and a clean title report says nothing about either. Unrecorded leases are the other structural gap, since a tenant in possession under an unrecorded lease may hold rights a search cannot surface. These are determinations for counsel, and the broader category is covered in attorney due diligence.

How AFX Research supports the file

AFX Research performs in-person searches, certified abstracts, and full document copies from any U.S. county — delivered in 12–72 hours and backed by our search guarantee. On a lease file the value is the recording dates and the documents themselves: who owns the parcel, what is recorded against it, in what order, and what the easements and covenants actually say. We handle deed retrieval for the underlying conveyances and work regularly with property attorneys on landlord and tenant diligence.

Order a title search with the recording dates and document copies your file needs, or compare our search products to match the scope to the transaction.