Pay attention to how your use clause is written in your lease. If you don’t, it could come back to haunt you and cost you in many ways.
Although all tenants need to pay attention to this and make sure the use clause is written correctly, retail tenants need to do this the most. Imagine you are a retail tenant and you sell a food item, for instance, coffee, as part of your menu. How do you make sure you always have the right to sell coffee under the terms of your lease? It’s not as simple as it sounds. And what if you don’t want other tenants to have the right to sell coffee? This is where the exclusive use clause comes in.
It is my opinion that a tenant should have a broad use clause. Example: “Tenant shall have the right to sell food products”. That way, the tenant has the right to pretty much sell any type of food product. But for a landlord, it would be better to limit the use clause to something like “ Tenant shall only have the right to sell coffee and coffee-related drinks”. In practice, savvy landlords and tenants end up writing the use clause somewhere in between the aforementioned two options.
The exclusive use clause is different than the usual use clause and adds to it in that it should prohibit or severely limit another tenant from selling your main product. But again, how the exclusive clause is written is of paramount importance. Example: “Tenant shall have the exclusive right to sell coffee at the Project” and it might add “except for up to 10% of another’s tenant’s gross income” or something like that with more details for clarification.
The above examples are for retail tenants but the same principle holds true for office, industrial or other types of leases also. If these clauses aren’t written just right you can have a legal battle on your hands and if the clauses weren’t crafted correctly you probably won’t win the battle so I urge great caution.
I have written and studied thousands of use clauses and make it a priority for my clients to do it right.
If you have questions about any of the above topics or have any CRE needs, please contact David Massie at firstname.lastname@example.org or 805-217-0791
Many of my clients have stated, “I don’t want to sign a long term lease like 5 years or more because I’m not sure I will be in business that long or might need more or less space.” My answer to them? It’s usually in their best interest to sign a long term lease and there are ways to terminate a lease early.
Signing a longer term lease between 5-10 years makes good sense for many reasons. You normally get the best economic deal that way with lower rent, more free rent and more tenant improvements paid by the landlord. You normally get more options like renewal options with more time. You don’t have to worry about moving sooner either or having to pay a much higher rent in 1-3 years if the market rates increase. Keep in mind that many landlords won’t agree to less than a 5 year term, especially for space in demand where another party will lease it for 5-10 years, so it will really limit your options for properties if you want to do less than a 5 year term.
If you need to terminate a lease early, you have many options available to you. You can request an early termination option of the landlord in your lease, but most landlords don’t like to grant them. If they do, they want enough time to release your space so a 6-12 month notice from you might be required. You might then have to pay back unamortized tenant concessions like free rent and tenant improvements. But this is still a good option to have if you can get it.
What if you can’t get the landlord to agree to an early termination option? There are still other good options like having the right to relocate in the project to a larger or smaller location. You also generally have rights to sublease or assign your lease to another qualified tenant.
If none of the above options work out, then you can still legally terminate a lease in most states like California. Courts usually require a landlord to mitigate a tenant’s damages. This usually means the landlord has to take reasonable steps to re-lease the space, but this mitigation usually only starts after you vacate the space –not while you are in it. However, I have seen most legal awards and arbitrations settle between 6-12 months of rent. This is generally the most a landlord can squeeze out of a tenant in Southern California. This can be a tricky matter, so you have to make sure you do it right and use someone familiar with the process like me or a good real estate attorney. You might need both. But I have been very successful negotiating an early lease termination for my clients.
Contact David Massie for more help: 805-217-0791 or email@example.com
In my last article on operating expense and NNN pass throughs in a lease, we looked at how expensive it can be for a tenant to pay their share of unreasonable property management fees.
This month, we look at another expense passed through to tenants where landlords commonly pad the number in their favor: Salaries.
You are probably already paying your share of property management fees. Now, in addition, you have to pay for salaries for everyone that works at the property from janitorial to maintenance to property managers and maybe even more.
I am currently involved in an operating expense audit where the landlord has decided that from one year to the next it is reasonable to increase these salaries by more than 50%. In addition, the actual hours worked at the property didn’t substantially increase. How is this possible? Because the landlord sold off some his properties and he allocated his employees’ salaries over the properties he owns. So, the less property the landlord owns the more you as a tenant pay for your share of this category. Needless to say, I think my client is going to prevail in the matter –especially since I negotiated the lease before it was signed so that this kind of thing won’t happen.
What is a tenant to do? How can a tenant get the landlord to be reasonable here? That’s where I come in. Having directed some very large landlord companies for over 25 years has given me great insight into how to help a tenant in this area. But you have to have a broker and/or real estate attorney savvy in this area who can set the lease up correctly or you might be stuck paying these kinds of unreasonable expenses.
This is just one of many examples of operating expenses/NNN a tenant is exposed to in most leases. Most tenants and even landlords don’t really understand this particular issue until it happens and it’s too late. Stay tuned for my next blog with more examples and even some savvy advice for landlords on my recommendation for how to negotiate the lease in this area and calculate these expenses correctly so you don’t end up losing the tenant at renewal time and/or get into expensive litigation over this matter.
If you are a tenant or landlord and want to find out how to avoid pitfalls related to leasing, buying, or selling, please contact me as I have in depth experience and knowledge in these areas including operating expense/NNN audits related to commercial properties.
Every tenant and landlord should have their operating expenses audited by someone that understands them fully to make sure they are correct. If you don’t, it will cost you.
Right now is a great time to sell commercial real estate in general, but especially in Southern California where my primary market is. Why? Sale prices are at all-time highs, there is very limited supply inventory (so not much on the market for sale), and all kinds of buyers are looking to buy what little amount there is available for sale –driving up prices with multiple bids usually.
So, why should a seller hire a broker and pay him a commission when a seller can do it on their own?
- Simply put, the seller will not be able to get the maximum price that a good broker can. Many brokers have clients waiting in the wings to buy a property and these clients will pay top dollar if they are allowed to make the offer first. Also, the price a broker is able to sell a property for more than pays for their commission.
- Sellers don’t have the same marketing ability as a broker. The world has become international and your reach has to be international. The dollars are flowing into the US from other countries right now and international buyers are willing to pay more many times. Brokers also know what is needed in terms of a marketing package to interest buyers. It’s complicated, expensive, and time consuming to put this package together properly.
- The timing of when to put the property up for sale is critical. When is the market peaking? Is there a lot of competition on the market for sale now? Good brokers will usually know what is for sale on the market as well as off market, but sellers won’t.
- The repairs that you need to make to the property before you put it on the market are also important. Some are worth making and some aren’t. A good broker usually knows what to recommend.
- What should the asking price of the property for sale be? What if there are no comparable prices for the sales price because the sales price is higher and the property won’t appraise for the sales price?
There are many other factors in selling a commercial real estate property; but, in my opinion, it starts first and foremost with the right broker. Doing it on your own is always a mistake. If you don’t hire the right broker or if you do it yourself, it will cost you. I have seen it many times.