Access our archived commercial real estate training Leasing Intervention Tips and acquire the knowledge and tools to help you better negotiate a commercial lease.
Leasing Intervention: Tip 025
Blondie and “Union City Blue” | From a tenant’s perspective, even at the point of searching for a space, tenant needs to know whether or not the building is a union or non-union building. Aside from the compatibility issue, the cost of performing work with union workers versus that of non-union workers adds a significant amount to the cost of your build-out. Watch Leasing REality’s Landlord & Tenant Work: Compatible Labor, Union/Non-Union Labor & Legal Compliance video here.
Leasing Intervention: Tip 024
It is imperative that a landlord require within its lease that their tenants furnish, from time to time when requested by landlord or a prospective purchaser or mortgagee of the landlord, a certificate signed by the tenant confirming and containing such certifications and representations within no more ten (10) days following receipt of said certificate from landlord. Similar in importance as legendary U2 rocker Bono’s “Music can change the world because it can change people,” tenants and their advocates need to be aware that although many estoppel certificates are generally just a few pages in length, great caution should be taken when signing them, as the estoppel can potentially act as an amendment to the lease changing the terms contained in the lease! Accordingly, at a bare minimum, in addition to reviewing each and every term contained in the estoppel, it is advisable that tenants have their attorney review the estoppel (and make comments thereto) prior to its execution. Read more about estoppel certificates here.
Leasing Intervention: Tip 023
Although certainly not applicable in all facets of life, when NO truly means NO, when negotiating a commercial lease, it is our belief that more often than not, a “NO” very well is an invitation to a “YES,” or at least a potential “maybe.” If you believe in the adage “where there is life, there is hope,” and like us prefer to look at the glass as always being 3/4 full, while metaphorically speaking accessorizing yourself on a daily basis with a pair of rose colored glasses tainted with a hint of a little thing called “reality,” you will have a better chance of turning your goals and leasing dreams into a self-fulfilling prophecy! No offense out there to anyone with the following names, but if you go around life and in your negotiations with a “Negative Nicky, Debbie Downer, doom and gloom” attitude, you will not be successful in the majority of the deals that you negotiate. Part of the art of negotiation, playing off of a song often sang by the Grateful Dead titled “When I Paint My Masterpiece,” is to put yourself in the heart and mind of the person sitting across the table from you, and once you are able to ascertain exactly what makes them hot, and what makes them not, you have created – as the name of the Kevin Costner movie goes, a negotiating “Field of Dreams” for you to relentlessly and passionately make a difference for your client, and consequently at some point in time, your bank account as well. View the remainder of Leasing REality’s Theory (9 of 9) here.
Leasing Intervention: Tip 022
In its simplest form, an SNDA (better known to some as a “subordination, non-disturbance and attornment” agreement) is a document wherein the lender will agree that the tenant’s occupancy will remain undisturbed (and as such its lease not terminated), notwithstanding the foreclosure of the landlord’s mortgage. Sadly, when it comes to the subordination clauses contained in their leases, more often than not landlords do not agree to make the subordination of the lease contingent on the landlord securing – for the benefit of the tenant – an SNDA, despite the fact that, to virtually any retail tenant and to many office tenants, attempting to secure an SNDA is absolutely imperative. Learn more about subordination and SNDA’s with Leasing REality’s Cheat Sheet on this subject.
Leasing Intervention: Tip 021
In a retail lease, more often than not, there will be little or no concessions granted to an incoming tenant in the way of landlord’s work and/or a tenant improvement allowance. Conversely, by way of example, on a Manhattan office deal, it would not be unusual to find that the upfront costs to a landlord on a 10,000 square foot lease transaction for Class “A” office space (a) renting at $60 per square foot, (b) with a $60 per square landlord work letter and (c) 6 months of free rent concessions, to be approximately $1,200,000 in the aggregate (i.e., $600,000 for the work letter, $300,000 for free rent and $300,000 for commissions if there is both a landlord and tenant broker). Given the foregoing large up-front costs, the landlord and its broker (and attorney for that matter) should incorporate into their letter of intent and the lease as many strategies as possible to not only protect the landlord legally, but to also help minimize its costs and risks while maximizing its profits during the lease term. Read or watch Leasing REality’s E-book chapter or Video on Financial Factors to Consider When Entering into a Commercial Lease (Part 1 of 4) for more on this topic.
Leasing Intervention: Tip 020
A basic “Desk Sharing/Permitted Occupants” clause in the most simplistic of terms should state that provided the tenant is not then in monetary or material non-monetary default hereunder beyond any applicable notice and cure periods, tenant shall have the right to license or assign in the aggregate up to one-third (1/3) of its space: Within the permitted use set forth in the lease; provided that: the named tenant is in occupancy and tenant is continuing to use the premises for the conduct of its business, landlord is given prior notice of such sublet/license […]. See additional conditions to include here.
Leasing Intervention: Tip 019
Give Me Your Vision and Be Clear About It | Landlord Advocates should establish a date certain that the tenant must provide specific details playing off of an existing schematic design plan or test fit plan as to exactly what tenant wants done to its space. By doing so, the landlord will be able to have its architect prepare construction documents for the build-out, including architectural and electrical, mechanical, plumbing, structural, and fire protection plans. Details of such items including the placement of heavy cabinets, special equipment, openings in the walls, electrical outlets, air conditioning, plumbing, and with locations and dimensions of all partner, junior partner and associate offices, open areas and bullpen locations and whether or not special work, such as millwork, variations to ceiling heights, selection of floor and wall coverings, sizes of conference rooms and special details such as glass walls and vision panels, must be provided to a landlord in a timely fashion. Subscribe now to access Leasing REality’s Landlord & Tenant Work: Timing Issues in a Landlord Work Letter E-book chapter.
Leasing Intervention: Tip 018
Mind If I Come Over Early? | If you are a tenant and the landlord is also going to be performing work to the space, having the right of early access is essential. That said, Tenant Advocates should negotiate language to the effect that, somewhere between ten (10) and twenty (20) business days prior to landlord’s substantial completion of its work, tenant shall have the right to access the premises early for the purpose of installing it’s telecom and data wiring contemporaneously with the landlords installation of any of its own work. Tenants will have to agree that their work shall not unreasonably interfere with landlord’s completion of its work, and that although the lease technically has not yet started, the tenant must supply a certificate of insurance from itself and tenant’s contractors for the insurance that is required under the lease. Listen or read Leasing REality’s Landlord & Tenant Work: Compatible Labor, Union/Non-Union Labor & Legal Compliance Audio or E-book chapter to learn more.
Leasing Intervention: Tip 017
“Good Clean Fun” | A letter of intent (“LOI”) provision for cleaning should provide for whether the tenant or landlord will clean (and consequently pay for such cleaning of) the premises, at what frequency they will cleaned, and by whom they will be cleaned by. LOI Cleaning Provision for Tenant Advocates: “Landlord’s cleaning contractor, at Landlord’s sole cost and expense, shall clean the Premises five (5) nights per week in accordance with Landlord’s cleaning specifications annexed hereto as Exhibit “A”.” View an example LOI cleaning provision for Landlord Advocates here and/or watch Leasing REality’s Cleaning: Negotiating & Preparing a Letter of Intent (“LOI”) (Part 22) Video.
Leasing Intervention: Tip 016
Beware of a Landlord’s Backdoor Boot | Whether intended or not, most fire and casualty clauses effectively allow a landlord to take advantage of a casualty that occurs by canceling a tenant’s below market lease in a market that has risen significantly since lease execution. Tenant Advocates: To partially protect against this, include language that provides that in order for the landlord to cancel the lease, they must concurrently terminate leases affecting at least 35% to 50% of the rentable area of the space leased to tenants in the building exclusive of any rentable area leased by the landlord. Subscribe now to access Leasing REality’s Fire & Casualty Clause Negotiating Tips.
Leasing Intervention: Tip 015
Exit Strategies from a Commercial Lease | Landlord Advocates: Landlords should include a right to recapture and/or leaseback a tenant’s space if and when a tenant requests to assign its lease or sublease its space. Tenant Advocates: From a tenant’s point of view, in the case of an assignment of a lease involving (1) a sale of a tenant’s assets or business, or (2) transfer to a related entity such as a parent, affiliate, subsidiary or franchisor, or in the case of a sublet to a permitted subtenant such as one for permitted desk sharing arrangements, landlords must waive their right of recapture and leaseback. Learn about Leasing REality’s Snagglepuss, Groucho Marx, The Clash & Steve McQueen Great Escape Theory by way of Video, Audio, E-book or Cheat Sheet.
Leasing Intervention: Tip 014
Cold as Ice and Hot Hot Hot | As to both air conditioning and heat, respectively, in those leases where a landlord is providing the service, the majority of leases do not address what minimum temperature must be maintained by the building owner in the winter or what maximum temperature you must endure during the high temperature months. Tenant Advocates: Either specifically negotiate those respective temperatures, or conversely, refer to compliance by the landlord with the comfort chart of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), whose mission is to advance technology to serve humanity and promote a sustainable world. Watch Who’s Cooler Than You?, Leasing REality’s Video on Heat, Air Conditioning & Electricity Clause Pointers within a commercial lease.
Leasing Intervention: Tip 013
Off The Wall | Tenant Advocates: Unless your landlord is truly unsophisticated, as a general statement, tenant will be required to remove any “specialty alterations,” such as a built-in vault, a sound room for recording, a raised floor, an internal staircase, a decorative floor with a tenant’s embossed logo or mirrored walls and/or ceilings. Subscribe now to learn more about restoration and removal obligations in a commercial lease with Leasing REality’s Cheat Sheet and/or Video on this subject.
Leasing Intervention: Tip 012
What’s the Use? | Landlord Restriction: To have a use clause for a nail salon that merely states that “tenant shall use the premises for a nail salon and no other purpose” is an example of a narrowly-defined use cause that will, down the road, come back to bite the tenant in its proverbial butt. Tenant Counteraction: Conversely, when it comes to a landlord consenting to a potential sublease or assignment of the space down the road, but for the use of the space as a restaurant or other “wet” use, a tenant can, metaphorically speaking, drive an eighteen-wheel tractor trailer sideways through a use clause that broadly states, “tenant may use the premises for a nail, health, fitness and/or beauty facility with the sale of health related and men’s and women’s clothing.” Explore our Use Clauses within a Letter of Intent (“LOI”) Cheat Sheet to learn more.
Leasing Intervention: Tip 011
The Letter of Intent (“LOI”) and Leverage | When negotiating a letter of intent (“LOI”), a tenant never has more leverage in its negotiations with the landlord than during the LOI preparation and negotiation stage. Once the LOI terms have been agreed to, although the deal is not truly effective until such time as the lease has been fully executed and delivered to all parties, once the lease has been prepared and while it is being negotiated, the tenant has most definitely lost a fair portion of its leverage. Stated a bit differently, at the LOI stage the landlord is either attempting to seduce a prospective tenant to lease space in its building, or alternatively, for an existing tenant to remain in its space to avoid vacancy and lease up costs (and the absence of revenue loss) associated with a tenant making like the Grateful Dead as they go Truckin’ to another building at lease expiration. View a few basic examples of why we at Leasing REality feel that a tenant has lost a significant portion of its negotiating leverage subsequent to the LOI stage.
Leasing Intervention: Tip 010
There are No Savings for a Tenant if it Doesn’t Hire a Broker | Generally, a landlord will pay no less than a full commission on a lease regardless of whether a tenant has a broker. Simply put, if a tenant has a broker, that fee is shared with the landlord’s broker. If the tenant does not have a broker, the landlord’s broker gets the entire fee. Even on many office deals where there is an “override” increasing the full 100% commission up to an additional 50% (with a 100% commission going to the tenant’s broker and 50% commission going to the landlord’s broker) – many landlords will agree that for the sake of getting a lease signed, it is worth the extra cost to have both parties represented by sophisticated brokers. Watch a Video or view Slides to see our not-so-dirty baker’s dozen list as to why commercial real estate brokers are an essential and integral part of any commercial lease transaction and “the system” itself.
Leasing Intervention: Tip 009
“It Isn’t What It Is – Size Does Make a Difference Theory” | Although loss factors and rentable square footage (“RSF”) are generally non-negotiable, depending on the nature of the deal, the market place, the financial strength of the tenant, the size of the space itself, and lastly, the negotiating “juice” that a tenant brings to the table, it is not totally uncommon for tenants to request: (1) A verification of the RSF calculation by way of re-measurement or architect certification; (2) the inclusion of language requiring the percentage used by the landlord for the loss factor calculation not to exceed a certain set amount (for example, on Long Island, many brokers for Class “A” space include in their proposals that the loss factor cannot exceed twenty percent (20%)); and/or (3) the loss factor calculation be based on a locally, regionally or nationally recognized measurement standard. Why Was There Shrinkage? Watch our Loss Factors in a Commercial Lease Video to find out.
Leasing Intervention: Tip 008
Top 6 Construction Risk Mitigation Tools | (1) Construction Escrow Agreement, (2) Payment Bond, (3) Performance Bond, (4) Individual and/or Corporate Construction Completion and Payment Guaranty, (5) Builder’s Risk Insurance, and (6) Requiring Periodic Delivery of Lien Waivers Throughout Construction Project. View our Construction Project Completion & Payment Mitigation of Risk Leasing Tips Cheat Sheet to learn more.
Leasing Intervention: Tip 007
Finding New Space & Relocation: The Construction Process for Commercial Tenants | (a) Order any long lead items, new equipment or furniture, and given that the majority of landlord’s will want nothing to do with your telephone and internet wiring – find the right firm to take care of this – as well as your long-term telecommunication needs. (b) If the landlord is building out the space, make sure that, as a tenant, you will be on the hook for little or none of the build-out cost, if possible. (c) Have a kickoff meeting with all parties who will be part of the construction and build-out process in order to set expectations and get all concerned on the same page. (d) During the construction process, have weekly or bi-weekly periodic meetings thereafter – whether by phone or videoconference, or at the job site. Check out our Top 12 Finding New Space & Relocation Tips for Commercial Tenants Cheat Sheet and our Tenant’s Guide to Space Searches & Moving Short Video series for additional pointers.
Leasing Intervention: Tip 006
Cannabis Industry’s Potential Impact on Commercial Real Estate and Leasing | Given that cannabis is technically a controlled substance, federal authorities may enter business establishments and charge those involved with forfeiture proceedings. Be aware of what is known as the Crack House Statute, which under Title 21, makes it a felony to knowingly open, lease, rent, use, or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance. In addition to the foregoing, there is other liability under the federal Controlled Substances Act. Percentage Rent | Keep in mind that given the current federal laws, essentially profit sharing of any kind is out of the question. In short, landlords need to avoid having a financial stake in the tenant’s business as it will technically have a stake in an illegal business! Explore our “I Want to Take You Higher” Blog, Top 20+ Things to Know about the Cannabis Industry’s Potential Impact on Commercial Real Estate and Leasing Cheat Sheet and Cannabis Issues in Commercial Leasing (Part 1) Video to learn more.
Leasing Intervention: Tip 005
Assignment & Subletting Leasing Trade Secrets and Other Truths | Landlord’s Goal: Landlords should seek to control the mix and strength of the tenant base and the ability to maximize its profits. In a landlord’s world, if anyone is going to make money of the space it leases out – but for the profit a tenant can make from its retail sales – it will be the landlord who does so and not the tenant! Tenant’s Goal: The tenant’s goals will usually be directly opposed to that of the landlord. Tenants will want to have as much business and financial flexibility as possible throughout the term of the lease, be it a five (5) or fifteen (15) year lease (or something in between). Subscribe now to unlock our Assignment & Subletting Cheat Sheets. View our Top 20 Assignment and Subletting Provisions Cheat Sheet here.
Leasing Intervention: Tip 004
A Landlord’s Control Freak Nature | Landlord Advocates: All landlords need to have some semblance of control over (a) what work is going to be performed in its building, (b) who will be performing that work, and (c) what protections it will have when that work is being performed. Landlords should include language in its lease that any work that is to be performed (and any contractor who may be performing that work) must be subject to landlord’s approval. Tenant Counteraction: The phrase “not to be unreasonably withheld, conditioned and/or delayed” must always follow any language requiring landlord’s consent or approval. If language appears in the lease requiring that landlord’s consent to any work be subject to landlord’s sole discretion, tenants need to change that as best they can to read, at the very worst, that landlord’s sole discretion be reasonably exercised. Watch Landlord & Tenant Work: Design and Construction Drawing Leasing Tips Video now.
Leasing Intervention: Tip 003
“Going Through Changes” | Until the new Financial Accounting Standards Board (FASB) reporting changes take place for public companies subsequent to December 15, 2018 and for private companies subsequent to December 15, 2019, commercial leases will essentially continue to be reported as an “off-balance sheet” item. After those periods come into play, commercial space leases will be considered capital leases, which in laymen terms means … Find out what that means with our FASB Commercial Lease Accounting Reporting Changes Cheat Sheet.
Leasing Intervention: Tip 002
Incentivizing Tenant Renewal | Landlord & Tenant Advocates: If a landlord has a reliable tenant in possession of the premises, it may be prudent to incentivize the tenant to stick around for another term. Given the costs associated with a tenant vacating a space (e.g., loss of revenue from a vacancy turnover, payment of a full brokerage commission or even a one hundred fifty percent (150%) commission on an office deal with an “override,” legal and architectural fees and the possibility of providing both landlord’s work and a tenant improvement allowance), landlords should consider some sort of “hometown discount” when it comes to free rent concessions on a renewal although it might not be necessary to treat an existing tenant as a true free agent. Dive into our Free Rent Concessions Cheat Sheet here.
Leasing Intervention: Tip 001
A good guy guaranty (“GGG”) in its simplest form is not intended to be a straight personal guarantee. The generally understood meaning of a basic GGG is that one or more principals (a “Guarantor”) of a corporate entity (such as a corporation or a limited liability company) will guarantee to the landlord that it shall, at a bare minimum, pay all base and additional rent payments provided for under the lease until the day the space is surrendered to the landlord – whether or not prior to the expiration of the lease term. Once the space is returned to the landlord in broom clean condition, vacant with all rent paid through the date of surrender, the GGG will be satisfied. At its most basic level, a GGG serves to (a) incentivize the corporate tenant to pay its rent during occupancy and (b) helps a landlord expeditiously regain control of the space if tenant becomes non-paying while somewhat minimizing a landlord’s short and long term risks. To view the Top 10 Legal and Business Steroids Injected into Modern Day Good Guy Guarantees (and Tenant Counteractions Thereto), click here.