Your Dental Practice May Be Put On Hold After Your Death or Disability, But Your Lease Obligations May Not
Jordan Uditsky • March 8, 2021
Many smaller dental practices are inseparable from the dentists themselves. The practice may be (and should be) a separate legal entity with its own license, but if the primary dentist ceases to practice, the practice will cease to be. This situation is fine if it is part of a planned and thoughtful transition or retirement. But it can be a catastrophe if the dentist becomes disabled or passes away unexpectedly.
Because even though the practice comes to a grinding halt, any obligations the dentist and practice have under a commercial lease will continue – unless the dentist prepared for such a possibility when negotiating the lease.
Standard Leases Don’t Care About Your Death or Disability
Most standard commercial leases, including those for professional practices, do not release the lessee from their rent or other ongoing obligations if they temporarily or permanently shut their doors due to the primary revenue generator's death or disability. This means that while a dentist is dealing with a life-changing medical crisis, or their family is mourning their loss, they will also face a landlord seeking its rent money for the remainder of the lease term.
The landlord won’t only look to the practice entity for its money. If the dentist signed a personal guarantee for the lease, the lessor could file a claim against the dentist’s estate seeking any remaining rental payments. This is money that the landlord is effectively taking out of the pockets of the dentist’s heirs.
Death and Disability Clauses
That is why many dentists request the inclusion of a death and disability clause when negotiating the terms of their lease. Such a provision allows the practice to be released from its obligations if the primary practitioner passes away or becomes disabled, even if there are months or years remaining on the lease term.
While commercial landlords are generally averse to such clauses, they are not uncommon in leases with professional service providers like dentists, who are the sole reason the practice is able to generate revenue and pay rent.
Often, a negotiated death or disability clause will still include a penalty of several months rent in the event the clause is triggered and the dentist or their estate elects to terminate the lease. This is usually preferable to the alternative if there is a long term left on the lease. Sometimes, the provision may allow a disabled dentist or the dentist’s estate to sell the practice and assign the lease agreement to the purchaser.
What If The Landlord Won’t Budge?
No matter how reasonable the request for a death and disability clause may be, there will always be landlords who won’t entertain the concept. This can be the case in lease arrangements where that landlord provides a significant tenant improvement allowance or performs costly and unique improvements to the leased space, a frequent occurrence in dental leases.
In such circumstances, the dentist should consider obtaining a “key person” or “key man” life insurance policy. The tenant would be the beneficiary under the policy and could use the proceeds to satisfy any outstanding obligations under the lease. Alternatively, the landlord may demand that the dentist add the landlord as an additional insured under the dentist’s death or disability insurance policy in an effort to mitigate its losses.
It is never fun to think about your own death or disability, whether you are engaged in estate planning or negotiating a lease for your dental practice. But in both cases, doing so can spare yourself, your family, and your practice from unnecessary and costly burdens during an already difficult time. Always consult with an experienced dental practice attorney before negotiating or entering into any lease for your practice.
We Focus on You So You Can Focus on Your Patients
At Grogan Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you.
Please call us at (630) 833-5533 or contact us
online to arrange for your free initial consultation.
Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
Why TODAY Is The Time To Prepare Your Practice – and Yourself - For an Uncertain Tomorrow
Bogus ADA Claims Regarding Dental Practice Websites Are Rampant. Your Lawyer Can Help You Tell the Difference Between a Real Problem and a Real Shakedown. Over 25 years have passed since the Americans with Disabilities Act (ADA) quite literally reshaped the landscape for people with disabilities. From building entrances to parking lots to restrooms to elevators, from hiring and employment opportunities to restaurants, stores, and websites, disabled Americans have far greater access to the same facilities, services, and opportunities as everyone else. Harassment at Best, Extortion at Worst For all the good it has accomplished, however, the ADA has also been abused by opportunistic individuals and attorneys who have used the law in bad faith to shake down small businesses, including dental practices, for alleged violations that have not actually caused any harm or infringed upon any rights afforded by the act. These self-appointed ADA compliance "testers" have filed thousands of nuisance ADA suits that have cost American businesses millions of dollars. According to one analysis, ADA lawsuits have increased by 320% since 2013, with over 4,000 suits filed in 2024 alone. Many plaintiff's law firms file hundreds of cookie-cutter ADA lawsuits each year. One person can visit multiple businesses or websites in a single day solely to identify even the slightest accessibility transgressions in order to generate claims. While these suits can focus on any number of alleged ADA shortcomings, those relating to website accessibility (discussed in detail in this earlier post ) filed by a handful of law firms and serial plaintiffs have earned the scorn of small businesses and practices across the country. That's because these "testers" and the lawyers who represent them specifically target small businesses, as they typically have limited means to defend themselves, may not be able to discern between legitimate and bogus claims, and often see a quick payoff as the path of least resistance. Here’s how the shakedown typically goes down: A plaintiff or their attorney sends the practice a demand letter in which they claim that the practice’s website is inaccessible to people with disabilities (e.g., missing image alt text, inaccessible forms, incompatible with screen readers). They cite a violation of Title III of the ADA. They make a demand for a cash settlement, often ranging from $2,500 to $25,000, alongside a request for accessibility fixes. The business/practice cuts a check in exchange for a release of any ADA claims by that plaintiff related to the website. The business/practice may then receive more demand letters, often from the same firm, on behalf of other plaintiffs who make the same claim, and the extortion continues. Don’t Act Impulsively – Do This Instead All this is not to say that dental practice owners should consider all such claims and demands to be frivolous or ignore their ADA obligations relating to their website. To be sure, a meritorious ADA lawsuit can indeed expose a practice to significant financial and reputational damage. Before reflexively giving in to an ADA demand letter and settling a supposed claim, practice owners should take the following steps: · Don't Panic, But Don't Ignore It. As noted, a demand letter with legalese and ominous language doesn’t mean that you’ve done anything wrong or actually violated the law. While your immediate reaction may include fear, confusion, or anger, don’t act impulsively. By the same token, don’t assume it is a bogus threat; crumble up the letter and throw it in the recycling. Deadlines in these letters are real, and failing to respond appropriately to a viable claim could lead to litigation. · Contact Your Attorney Immediately. This is not a DIY situation. Before responding to the letter or contacting the sender, consult with an attorney experienced in ADA compliance and website accessibility issues. Your lawyer can evaluate the demand letter or complaint, the validity of the claim, and the law firm behind it before formulating an appropriate response. Testers send many cookie-cutter letters that may contain boilerplate allegations of deficiencies that do not actually exist. · Evaluate Your Actual Compliance. Work with your attorney and website accessibility experts to have your website assessed against the Web Content Accessibility Guidelines (WCAG) , which courts often reference in ADA website cases. Understanding your site's actual accessibility helps inform whether settlement, remediation, or another approach makes sense and whether you need to take additional steps to avoid future claims. Keep in mind that this isn't just about legal compliance—it's good business. An accessible website serves all patients better and demonstrates your commitment to inclusivity. If you have questions about your business's ADA obligations and how to protect it from accessibility complaints, please call Grogan, Hesse & Uditsky at (630) 833-5533 or contact us online to arrange for your free initial consultation. At Grogan Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
