3 Items To Prepare For When Leasing Medical Space

hammer cashThroughout the State of Texas, MREA has assisted practice groups and healthcare professionals make the best real estate and space planning decisions for their organizations. Medical space is uniquely separate from traditional office space offering unique challenges that require professional guidance.

While we prefer to remain positive and energetic in our quest for our clients interests, what follows are a few mistakes that are made when signing a medical lease. Our tenant representative team not only helps to avoid such mistakes, but guides our clients through every step of the leasing process to help procure the ideal opportunity. To request the entire list (seven other items), please contact a healthcare real estate representative at 713.701.7900.

The Personal Guarantee
Medical landlords are apt to require personal guarantees. A personal guarantee is a legal contract between a landlord and an individual to guarantee a specific obligation of a business, usually the remaining rental obligation under a lease. Personal guarantees provide the landlord with additional recourse in the event of a default on a lease agreement. The implications of a personal guarantee are significant because personal assets (e.g., house, cars, retirement funds, etc.) are at risk if the party defaults on the lease.

The landlord commonly advises that to hedge against the high cost of the tenant improvements, personal guarantees are required for medical space. Due to this additional risk, a personal guarantee is instituted to provide additional security for the tenant’s full performance of the lease.

While any landlord that chooses to own a medical office building should expect high build-out costs, they should also be familiar with the lower risk associated when leasing to medical tenants. Furthermore, and as a rebut, the rental rate for medical office space is commonly higher to offset the higher tenant improvement contribution by the landlord. For example, the rental rates for medical space are far greater than those of traditional office space.

  • So, if the landlord wants to reduce risk by requiring a personal guarantee, is it fair to suggest there should be a corresponding reduction to the rental rate?
  • Will the interior improvements be specialty or generic? How does this factor into the decision for a personal guarantee as one size doesn’t fit all.
  • Is the medical group a newly formed entity or is there a solid history of financial performance to ease the landlord’s concerns? What role does this play in the landlord’s decision?

If some form of personal guarantee is necessary, there are steps to take to protect oneself and/or limit a group’s exposure. For example, if you are in a partnership with multiple physicians, limiting a guarantee obligation to a specific percentage ownership in the practice is reasonable. Also, one should be have the capability to structure the guarantee so that it declines each year as the landlord’s risk exposure is reduced.

Additional items in negotiation may include a release of the guarantee based on the percentage of the lease or loan paid off, a specific end date for the guarantee, exclusion of certain personal items from the guarantee, and in some circumstances, personal guarantee insurance.

The Cost of Tenant Improvements
Tenant improvements for a medical space can be very expensive. Building out a space to cater the unique spatial needs of a healthcare group can range anywhere from $50 to $250 per square foot, depending on a myriad factors such as:

  • What is the current condition of the existing suite (warm or cold shell)?
  • What is the level of specialized requirements for the group (e.g., plumbing in exam rooms, lead walls for x-ray units, surgery components, etc.)?
  • What are the groups decision for improvement finishes?

It is keenly important to comprehend the current condition of the space and how this will affect the purchasing power of each tenant improvement dollar going forward. A $25-per-square-foot allowance for a second-generation dental practice may be adequate, but the same allowance will barely get you started if you are building out from a “cold shell.” The point is to understand what is present before signing a lease.

The Timeline and Complexity of a Build Out
Just as the cost for tenant improvements varies by practice specialization and current condition of the space, so does the project’s complexity, and ultimately, the timeline for delivery of the finished space. For example, a practice requiring surgical space and digital x-ray units will take substantially longer to design, redesign, permit and construct than a family practitioner’s office which may simply require individual exam rooms.

We typically advise our medical clients to plan for a minimum four-month build-out period in order to design, obtain the appropriate permits, and construct the suite. For expensive and complex medical projects, the build-out period can be closer to one year — some longer. So, it is crucial to deploy the right team of experts from the outset.

Time happens to be the best leverage for a real estate negotiation. If it is not utilized effectively, things will get expensive — FAST.

Medical Real Estate Development: Location and Site Analysis

The analysis for a location and site are two separate parameters for which to search for developable land to hold commercial real estate structure. Each type of commercial use, and each specific user, will make special demands for location and site. Access to main thoroughfares may be important to office, retail usage, while population or housing density for apartment usage, or proximity to rail lines or airports for industrial use. Medical location and site analysis tend to combine several of these factors, while consistently rely on proximity to other physicians, hospitals, surgical centers and ancillary services.

To consider a medical location and site in general terms, without specific medical use in mind, a seasoned developer, or user, will look at the following features and devise a way of rating each.

Features for Location Analysis
  • Natural Boundaries and Barriers
  • Manmade Boundaries and Barriers

Usage Patterns

  • Growth Areas
  • Traffic Flows
  • Regulations and Controls
  • Incentives
  • Tax Structures
  • Community Master Plans


  • Neighborhood Image
  • Community Attitude
  • Location Image
  • Surrounding Users


  • Employment Centers
  • Retail / Restaurants
  • Road Network
  • Transportation and Shipping
  • Residential Areas
  • Labor Pool
  • Educational Facilities
  • Recreation
  • Customers
  • Municipal Services
  • Utilities
  • Competition

Supply and Demand

  • Population
  • Employment
  • Income
  • Wages
  • Expenditure Patterns
  • Absorption/Vacany
  • Real Estate Prices
  • Competition
  • Traffic Count
Features for Site Analysis
  • Size and Shape
  • Front Footage
  • Soil Composition
  • Topography, Slope and Drainage
  • Vegetation
  • Buildable Sites
  • Engineering Requirements


  • Side of Street
  • Medians and Curbs
  • Turn Lanes
  • Deceleration in Acceleration Lanes
  • Traffic Controls

Economic Factors

  • Price and Acquisition Costs
  • Development Costs
  • Taxes
  • Development Fees to Community
  • Municipal Services

Regulatory Factors

  • Zoning
  • Maximum Building Area
  • Required Parking
  • Environmental Issues
  • Permits and Licenses
  • Applicable Building Codes
  • Special Requirements (Buffers, Retention, Etc.)


  • View
  • Appearance

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The Leasing Process: Medical Office Building

Of utmost importance to a medical building’s ultimate success is the recruitment of physicians. For medical office projects, our group will complement management, administration or business development to embrace and add value to the overall objectives of each project. Because we are acquainted with physicians, to which we have lent our professional lives, MREA maintains a vast working knowledge of how each medical business is positioned within Texas’ commercial real estate landscape.

Along with dedicated research, our leasing unit has developed a proprietary leasing program that connects physician specialties, their locations, potential hospital affiliations to assist in determining the size, location and ideal tenant mix within medical office buildings. Furthermore, our medical real estate leasing specialists are actively engaged in the process. We take note of the objectives for each MOB project and tailor marketing strategies, advertising, and public relations campaigns to champion physician prospects for each available space.

Our healthcare real estate group begins each assignment with purpose and direction which involves:

    • A thorough understanding of the medical office market which includes competing hospitals, physicians, medical services, rents, operating expenses, improvement allowance, concessions and limitations.
    • A firm comprehension of hospital healthcare delivery objectives such as use restrictions and tenant mix to determine how a medical office will meet the needs of the prospect with respect to the competitive landscape.
    • Developing a plan of action based on a set of facts, assumptions and the objectives of stakeholders and comparing those to present market conditions.

This exhaustive analysis is essential to the most successful medical office projects. Our healthcare leasing unit’s preliminary due diligence enables our organization to properly position any property in the market to meet client objectives, as well as physician needs, all while preparing for future negotiations that will exist.

Because there are several parties involved in a successful medical office leasing program, communication is of vital importance. Our communication process involves frequent gatherings with key management, administration or business development executives and a detailed format for briefing on the status of our progress. This proprietary medical office leasing and communications process enables us to track tenant leasing progress, summarize the status of each prospect, provide next steps and assign responsibility. Our reports will provide a snapshot of the available square feet and that which is leased at any given point in time.

MREA is very open and considerate to incoming calls regarding medical office lease projects and would certainly appreciate the opportunity to vie for your existing, future development or acquisition projects.

Easements Explained

Easements are complicated. The law of easements has its own unique language, and being privy to the terms will provide a foundation for understanding the how your building arrived onto the property.

The top 10 most commonly used easement terms are:

  1. Easement: A legal interest or right which one party has over the land of another.
  2. Affirmative Easement: An easement that allows the holder to perform certain actions on the land of another.
  3. Negative Easement: An easement that allows the holder to prevent the owner from performing certain actions on his own land.
  4. Easement Appurtenant: An easement that attaches benefits the property owner, rather than the individual.
  5. Easement In Gross: An easement that benefits an individual, rather than the property.
  6. Prescriptive Easement: An easement acquired through continuous and open use over a period of time.
  7. Easement By Necessity: An easement that is necessary for access to the dominant estate after it has been created out of the servient estate.
  8. Easement By Implication: An easement that is necessary for the reasonable enjoyment of the dominant estate after it has been created out of the servient estate.
  9. Dominant Tenement: Land that is benefited by an easement.
  10. Servient Tenement: Land that is burdened by an easement.

There are a certain ways by which easement rights arise. For a few examples, easements can be acquired: 1) by an express grant; 2) by prescription; 3) by necessity; 4) by implication; and 5) by condemnation.

  1. An express grant refers to the granting of permission by the owner of the land where the easement would lie.
  2. A prescriptive easement arises if someone uses a portion of another’s property without his or her permission for a statutory period of time.
  3. An easement by necessity arises when a property is landlocked and the easement over the servient estate is necessary because the dominant estate is not accessible by other means.
  4. An easement by implication is be necessary for access, but arises when an existing, open, and continuous use of one parcel is necessary for the reasonable enjoyment of the other parcel.
  5. An easement by condemnation arises when it is taken by the government or an entity with condemnation authority that has exercised its right under eminent domain.

Most often an attorney will be asked to draft an easement into a deed or instrument that will be recorded in the applicable registry of deeds. The registry of deeds is the appropriate place for recording an interest in real property.

If you require assistance for an easement pertaining to healthcare real estate related issue, please contact MREA either for past reference or recommendations to counsel.

Issues That Can Arise When Leasing Medical Space

ImageYou feel fortunate to have negotiated a favorable rent on behalf of your physician group, with free rent and options to renew, a generous tenant improvement allowance, and your contractor is ready to start building out the office. You have also negotiated with your contractor a reasonable price for the tenant improvements, and you have obtained a loan from your lender to cover all of your construction costs. The landlord quickly presents you with a lease which looks to be a  well-prepared document in which he/she requests that you sign it quickly to obtain the keys to the building / space. Should you sign the lease and expedite the process or should you consult with a leasing specialist to analyze?

This article is intended to provide an overview of some of the issues that MREA encounters when negotiating leases on behalf of physician practice clients. It is not intended to be comprehensive in nature, nor is it intended to replace the advice an attorney may provide.

Commencement of Lease

Once the lease is signed, your practice group and the landlord often have objectives that differ from one another. The landlord wants the lease commenced as quickly as possible so that lease payments begin, while your office seeks the completion of the build out to the agreed specifications with everything operational.

If your landlord is building out the office space, it is of vital importance to provide the landlord with the most detailed plans relative to your space and other details in an effort to guarantee that the office will meet the groups needs and expectations. However, it is important to ensure that the lease will not commence until the built out space has passed inspection by the local building authority. Most standard form leases provide that the build out will be deemed complete when the landlord or its contractor/architect certify that it is “substantially complete”. Usually this means that “punch list” items will be completed by the contractor after you have opened for business, and this isn’t the image you want to present to your patients.

Price Increases

Nearly all leases have rent escalation clauses that are either contractual in nature or are tied to an index, usually the Consumer Price Index (CPI) published by the U.S. Department of Labor. Contractual increases are what your practice and the landlord will negotiate regarding the life of the lease term. More common is a cost of living adjustment tied to the CPI. In recent years, CPI increases have averaged approximately 2% per year. However, historically the CPI has had periods of tremendous volatility. For instance, during the four year period between 1978 and 1982, CPI increases averaged over 10% a year.

We always recommend that they have a “ceiling” on CPI increases is necessary to protect them from unusual inflation occurrences. However, this is a highly negotiable item that will not gain consideration without compromise.

Rental Rate During Option Periods

When initially negotiating the lease, your group wants the option to renew the lease, which is very specific as to rent price. If you are using the typical standard forms as provided by the landlord, you will usually find one of two standards; either an increase tied to the CPI increase over the last adjustment date or an adjustment to prevailing market rent in the area. Many business people opt for CPI increases. However, there is a hidden trap here for physicians in that they typically spend a considerable sum on tenant improvements, and the landlord knows it is simply not economical to move an office if the CPI adjustment for the option period far exceeds the prevailing market rent.

Therefore, it is important to consider an adjustment to market rent, provided that it does not restrict the rent from being reduced in a soft rental market. Also, in order to ensure that a real market rate adjustment will occur, we recommend an arbitration procedure whereby the parties each choose one appraiser, and together the two appraisers choose a third appraiser, with the two closest appraisals being averaged to determine the fair market rent. Although this procedure is rarely used, it offers protection to a physician who has an arbitrary landlord unwilling to negotiate fairly.

Office Damage

A few years ago, we received a call from a client that they had moved from an office that had been destroyed in Hurricane Ike. Although the Hurricane had occurred a year and one-half prior, the physician had received a call from the landlord telling him that the building was being renovated and the lease term was still in effect. Since the client had already built a new office in a separate location, the group found himself in a sticky situation where there was the possibility of paying on two leases.

Most of the standard physician office leases impose no real obligation for the landlord to rebuild, and provide the landlord the greatest flexibility in determining when or if to rebuild. By contrast, the tenant is typically obligated to move back into the space within a short period of time after the building is repaired. But, imagine the difficulty in retaining patients when the move into interim or new medical space is necessary, especially when unexpected. Therefore, it is becoming a common request for the right to terminate the lease if the landlord has not commenced restoration or has not completed the work within a reasonable period.

Assigning or Sublease a Space When Selling a Practice

Suppose a lease was negotiated several years prior and the lease rate is substantially below market and the current tenant remains responsible for the entire lease term plus any options. The lease also provides that the landlord can deny the assignment if it would upset the tenant mix in the building.

The landlord disapproves the assignment even though the buyer of a practice has the similar financial net worth as the seller when they signed the lease. The landlord also claims physician group’s operation would upset the tenant mix in the building, even though there were no other like physicians in the building and attempts to negotiate.

How Can You Avoid Situations Like These And Other…?

  • Eminent Domain?
  • Road Construction?
  • Tenant Becomes Disabled or Dies?
  • Foreclosure Sale?
  • Relocation Rights?
  • Water Damage?


A prospective tenant should always remember that the lease the landlord presents is subject to negotiation. The tenant should use a qualified real estate counsel to review the lease. Entering into a landlord/tenant relationship is similar to getting married, and the relationship is likely to last a long time, for better or worse. A careful review of your lease documents before signing will ensure a better relationship between your group and the landlord should issues arise.

Ambulatory Surgery Center: From Concept to Reality

In our continued expansion throughout the State of Texas, we are regularly posed questions pertaining to financial feasibility and cultivation of an ambulatory surgery center. We would like to respond by providing a few feasibility studies, to include financial summaries, in a later post. This post will be dedicated towards setting up the ASC entity, determining consultants, bidding to preparation for construction.

1.  Once you have determined that it is feasible to build an ASC, you must first consider its legal structure. Will you consider owning the ASC with partners outside of your medical practice? Many physicians adopt others when building an ASC. But, prior to making this decision, it is important to determine the legal risks associated with joint ownership of an ASC. Many are familiar that Stark Law has limited scope for operations within a surgery center, yet several other legal issues such as non-compliant physicians, indirect referrals, and billing matters may arise and should be considered and should be explained to avoid contagion within an ASC.

If the ASC is going to be built on existing land investment, it is important to determine how the land should be owned. Should it be in its own legal entity or part of the ASC entity? Will all of the owners of the ASC own the real estate? Owning the real estate in a separate entity may make the cost of the ASC more affordable for others. Separate ownership of the real estate may also provide an income stream for years to come. If your ASC is owned in a separate entity, you should consider the tax implications with receiving income from more than one employer.

Your legal counsel should review with you the issues surrounding the building of an ASC. They include, at a minimum, HIPAA, Anti-Kickback Statute issues, fraud and abuse issues, and antitrust considerations.

Once you have evaluated the legal considerations and determined the structure of the organization, your legal counsel should prepare a number of organizational documents. Within this packet, you should have an Operating Agreement which details how the business of the ASC will be run. The Operating Agreement will clearly define the initial and supplemental capital contributions of each member of the ASC as well as how contributions will be required. The Operating Agreement may also contain a non-compete provision prohibiting investors in the ASC from owning an investment interest in a competing ASC within a specific geographic area. You should consult with your attorney regarding the enforceability of non-competition covenants. The Operating Agreement will also determine how new partners are admitted, and the buy-out of existing partners. A valuation formula for the Member’s ownership interest should be included in the Operating Agreement. The Operating Agreement should also contain a conflicts of interest provision which requires members of the ASC to disclose potential conflicts or business opportunities to the ASC.

2.  Moving forward, now that a viable project exists, it is time to turn the attention towards the next step, which is to contact the state where the facility will be constructed to determine the steps necessary to complete the project and comply with the necessary state and federal requirements. Texas will send you a packet of information detailing this process and advising you of the significant building requirements.

In conjunction with this, it would be advisable to interview architects. In the process of interviewing candidates, be sure to qualify each one based on their experience designing ASCs within Texas. ASCs can be complex structures with significant engineering involved. Do not proceed without a qualified architect and engineer who commit to providing you with a fully engineered plan. As a caveat, if the architect advises you to proceed on a “design build basis” where the contractor and his subcontractors provide the engineering, you may be inviting delays in getting the center built.

The basic decision of what is to be built is largely based on what procedures will be performed at the ASC. If a constructing a single specialty ASC, it is common for physician to assist in direction for the layout of the ASC. Certain spaces are required inside the ASC to support the surgical procedures you intend to provide. The list of all of this space is called the program. Once a program has been developed, the floor plan layout can be done.

For purposes of certification, Texas requires floor plan review prior to proceeding with formal construction planning. Once the floor plan has been approved, your architect can proceed with the construction drawings. A significant period of time for this should be alotted, as most projects sit in idle during this phase.

Most owners want control of bidding for their projects. However, because the industry is seeing a greater number of projects moving forward, some are being performed within a construction management agreement. The advantage to construction management is that if you have advisory through experienced general contractor, or knowledgeable advisory, the process can ultimately save money within in the design process. The contractor can provide a valuable engineering function by recommending less expensive ways to construct the building or less expensive materials for the project.

3.  If you decide to bid out the ASC project, we recommend you get bids from multiple contractors. Your architect and consultants should make a recommendation as to which bidder wins the contract. Ultimately, it should be the owner’s decision, although the architect and consultant’s recommendations will remain of serious consideration.

Once the contract is awarded, be sure to sign a contract for the construction of the project. Also be sure to set out expectations for payment to the contractor at the start of the project so everyone knows what is expected of them. You should expect multiple requests for payment during the project based on a percentage of the project that is completed.

The architect and consultants should provide regular onsite visits. A report should be available on a bi-weekly basis to keep the owner apprised of the progress being made. Construction meetings with the subcontractors, general contractor and the owner’s representative should be held along these same scheduled intervals.

Please look forward to subsequent posts regarding feasibility studies, equipment, or licensing of an ambulatory surgery center.  Contact Robert S. “Bob” Lowery of MREA for any questions during any part of the planning or implementation process of your Texas ASC.

Healthcare Facility Leasing FAQs

We are commonly asked questions that pertain to concerns which are healthcare industry-specific, yet we can always find a way these issues relate back to the contractual obligations of real estate commitments.  As a courtesy to those that are seeking guidance explicitly for when the rubber meets the road (real estate meets healthcare), we have provided some fairly uncomplicated scenarios that will likely exist in a health facility lease transaction.

Landlord Vs. HIPAA
Commonly, a lease agreement will allow the landlord entry onto the premises for the purposes of inspections and repairs.  HIPAA provides guidelines to protect medical records and personal health information.  A lease within a medical facility will typically provide that the landlord may not enter an exam room with patients present.  Further, most leases will indicate that any location within the spatial premises leased by the tenant, if entered, will have the potential to breach privacy or confidentiality of patients or medical records.

Tenant Vs. Medical Waste
A medical lease agreement will typically include a provision that prohibits a tenant from using or storing any hazardous materials on the property without the consent of the landlord.  If the tenant will require the use of such materials, the lease will commonly indicate that the materials commonly used in concert with the permitted use of the leased premises will be allowed, as long as the materials are stored in compliance with strict regulatory commitments.

As for the disposal of hazardous waste, leases commonly provide that the landlord will be responsible for janitorial services, but will require the tenant to arrange for its own disposal of medical waste.

Stark Law Vs. Landlord/Tenant
It is important to consider if a relationship exists that has the ability to breach Stark laws, or potentially, Texas law.  The Anti-Kickback Statute deems it a felony to offer, tender or receive fee, or compensation, if the payment is determined to influence referrals for patients.  So, it is important for a lease to exist and to comply with the following:

  1. Be in Writing
  2. Identify the Premises
  3. Term of Lease at Least 1 Year
  4. If Interval (Time Share, etc), Lease to Specify Schedule and Rent for Interval
  5. Rent must be Fair Market Value

Permitted Use Vs. Technology
A lease agreement will include a permitted use provision that restricts the use of the space to certain business operations.  Yet, a tenant wants to maintain flexibility, especially with the newly minted technological changes that are required to adapt and compete within a specialty.  So, a tenant wants the provision to be as broad as possible, while a landlord seeks to restrict the use to improve tenant mix and provide other tenants with exclusive rights.  While a rare bone of contention today, technology will eventually force tenants to seek very general, or highly specific opportunities.

Building Vs. Equipment
The medical industry has some of the most cumbersome and demanding equipment.  It requires specific attention when placing on the premises of a multi-story structure.  Thus, some buildings have special provisions for weight distribution or electrical capacity.  The location and installation of necessary landlord and tenant is commonly addressed in lease.

Improvements Vs Landlord/Tenant
The lease agreement will provide how each party will become responsible for design, materials and installation of the tenant’s improvements.  While a highly negotiable item within the lease, it should determine the control of implementation and ownership of improvements.

Lease Vs. Physician Practice
A greater number of leases are requiring personal guaranties from key members within a physician group for the purposes of adherence to contractual obligations.  With more physicians defecting to hospitals, merging practices, or even leaving certain jurisdictions, we are noticing considerations for physicians to be released from guaranty if the leave the practice, while including those that enter.  Other limits include guaranty amounts proportionate to ownership share of practice.

These are abbreviated responses to a few common inquiries pertaining to medical real estate, none of which constitute legal advice.  Please make sure to contact Robert S. “Bob” Lowery for guidance with your healthcare real estate decisions.