Will Lease Accounting Changes Affect Healthcare Providers?

Just when our clients were becoming comfortable with the general premise of healthcare reform and the likelihood of declining medical reimbursements for years to come, enter the August 2010 Financial Accounting Standards Board proposed accounting rules for real estate and equipment. These changes have the potential of tremendous impact on equipment and real estate via the composition, execution and implementation of leases.  In its current form, and depending on the breadth of an organization’s lease commitments, this has the effect of throwing tens of thousands to millions of dollars of lease commitments onto each balance sheet.

Speaking specifically to the healthcare industry, real estate and equipment leasing has been utilized extensively to assist with several business pressures, whether it be administrative, technological, competitive or regarding growth plans. This has been the preferred method, and a substitute to purchasing which requires significant cash outlays, among other prohibitive items.

Lease Accounting Changes

To explain where we are potentially going, we should address where we are currently. The Generally Accepted Accounting Principles (GAAP), which is code for how CPAs and businesses prepare financial statements for income and expenses, assets and liabilities, draws a line between an operating lease and a capital lease. Under the new guidelines, the difference in classification will be deserted.

It might surprise you, but, according to several sources within the accounting industry, the distinction should be abandoned. This is because the current trend has been where businesses place lease commitments off of the balance sheet, whereby financing new transactions without recording existing lease commitments as liabilities.

It has been suggested that the effect of adoption will add an estimated $1.3 Trillion onto balance sheets of businesses, significantly impacting both assets and liabilities of companies, which is to include private and non-profit organizations. Under the proposed standards, long-term real estate and equipment leases will be required to be disclosed, similar to that of a purchase.

The greatest impact would be that of dumping your equipment and real estate onto the balance sheet, but, even more complicated is that it would be necessary for lessees to calculate what is known as an ‘expected outcome analysis’. This can be defined as the present value of future lease payments. As each lease seems to differ from one other, under the rules it will be required by the lessee to determine potential financial outcomes within leases, including extensions, CPI adjustments and expense reimbursement items such as improvement amortization.

The new measures would require revisions at each reporting period. For each period, the changes stipulate that the income statement be revised to reflect the interest expense component, as well as losses to the asset.

Concerns are certainly mounting. Many are not sure how dramatic of an impact the shift will be, as well as their difficulty in determination of long-term forecasting models for relatively unpredictable financial outcomes. This uncertainty would create a deterioration of the use of lease term variables, to be explained further. Other criticisms include that of the time and costs transferred to real estate owners and businesses to implement such change.

As for impacts of leasing changes with regards to the healthcare industry, there are several as well. As was evident by medical real estate development growth that has occurred on and off the hospital campus, leasing has been a very effective tool for hospitals, now referred to as medical centers.  These systems developed facilities to provide for favorable referral situations with physician groups to provide for and offset the enormous costs associated with operating a hospital. As for equipment leasing, most of these institutions have levered improving medical and technological advances by leasing equipment, so as to not become tied to the purchase of vital items, essential in patient satisfaction, that may become extinct within a short period of time.

The potential effects on real estate could have significant impact for systems and physician practices that have used lease transactions to add assets or expand in geography, now essentially having to make room on the balance sheet for all of it. Quickly, some will find themselves flirting with the line of allowable leverage that demonstrates necessary stability for the purposes of future investment. Arrangements such as ground leases or subleases have the potential to become negative consequences, rather than the opposite. It is no doubt that many healthcare providers are in their respective war rooms developing strategies designed for lease administration changes. MREA is currently working with hospital systems, large and mid-size physician groups to educate about such changes.

As for modifications to these proposed, monumental changes to accounting principals, please contact our firm.  A new exposure draft is to be made public in the second quarter of this year.

MREA – Medical Real Estate Advisors was strategically designed to assist healthcare providers via our ‘healthcare business meets real estate’ mission statement. The firm’s owners are actively licensed CPAs, principals and real estate practitioners that, when utilized properly, have the ability to provide streamlined solutions to complicated business and real estate items that otherwise would absorb valuable time, multiple contacts and resources to remedy. Contact your representative today or go to http://mreausa.com.

A Dirty Issue: The Handling of Medical Waste

The creation and disposal of medical waste should be addressed in a lease for medical office space. Generally, medical waste regulatory acts define what medical waste is and establishes methods for handling and disposing of waste. Each medical entity that is subject to such the act is typically required to register with a state agency, such as the public health department, and have a documented medical waste management plan. These acts contain specific requirements for the packaging, containment, handling, disposal and incineration of medical waste. Regulatory requirements typically treat medical waste differently from that of hazardous wastes.  Accordingly, the types of hazardous wastes provisions in standard office leases usually include a supplement with a provision that specifically addresses medical wastes and the obligations of the landlord and tenant with respect to the disposal of the waste.

Commonly, the tenant that generates the medical waste is also liable for properly handling and disposing of the medical waste.  Careful drafting by an attorney is necessary to ensure that the lease properly delegates the responsibility for disposing of this waste.

Even when the landlord assumes the responsibility for removing the medical waste from the building, the tenant often is required to store the waste it has generated within the premises until the landlord’s medical waste disposal company picks up the waste for the building. These obligations must be carefully detailed. Tenants should consider requiring the landlord to hold the tenant harmless once the landlord takes possession of the waste, such as when the waste is placed in a common area designated by the landlord to receive medical waste.

A very critical aspect of identifying each party’s responsibilities is determining what is meant by “medical waste” or “infectious medical waste” as the obligations for handling each may be somewhat different. Generally, medical waste is a more inclusive than infectious waste.

A lease should require the tenant to immediately separate any medical or infectious medical wastes, upon production or generation, from other types of office waste and place such waste in a container that is marked “biohazard,” “infectious medical waste” or the like. The drafted lease can further specify that the container be leak-proof, moisture-proof, puncture-resistant, or has the strength to resist, tearing, ripping, or bursting in the course of normal usage or handling.

Landlords commonly prefer that the tenant contract directly with an appropriately licensed medical refuse company which operates in compliance with all federal, state and local laws, rules and regulations pertaining to the removal and destruction of medical waste. This limits the liability of the landlord should a tenant fail to remove medical wastes. Our office has seen landlords protect themselves by adding language regarding the failure of a tenant to remove medical waste whereby including a provision that gives the landlord the right to remove the medical waste and then bill the tenant for the costs of removing such waste.

If the landlord agrees to dispose of medical wastes generated by the tenant, then the lease may create liability for the landlord beyond just the care of the medical waste itself. Such liability is based on the landlord’s control over the premises. If the landlord allows medical waste to be stored outside of a tenant’s space, then the landlord assumes liability for the ultimate disposal of such waste. Thus, the landlord needs to give contractual control over the medical waste storage areas to the tenants and prohibit storage of medical waste in common areas or other areas under the landlord’s control.

Additional issues can arise upon termination of a lease if the tenant has not removed all of its medical wastes. Under a nuisance theory, a landlord may be liable for hidden dangers of which a new tenant has not been informed.

If landlord is responsible for disposal, it is imperative that the landlord provide such information to janitorial services in a building. The landlord needs to ensure that these workers are adequately trained to recognize the containers that are marked for medical waste and to avoid handling the containers marked for medical waste. Additionally, such workers should be informed to recognize medical waste that may have been inadvertently left open and how to place such medical waste in an appropriate container or more likely a scenario; notify the tenant to do so. Indemnification provisions should deal with this as well.

Conclusion

Given the danger of medical wastes to the lease space, property and community if improperly disposed by a tenant or landlord, our office recommends working with a knowledgeable medical real estate brokerage and attorney to assist with several strategies of dealing with consequences of medical waste on real estate transactions.

Comprehension of a Medical Lease Contract

Statement:  After auditing countless medical leases through our firm, its CPA and attorney partners, we want to make fully aware the consequences of any real estate agreement that is executed (signed).

On behalf of the associates of this firm, the declaration above is about as harsh and opinionated that we, as advisors, can be without crossing the line whereby disassociating ourselves in our mission to coordinate the healthcare real estate markets; physician, hospital, investor, owners.

But, speaking from the perspective of a landlord (lessor), the largest impediment that a landlord sees is the lack of commitment and foresight from the lessee’s principal founders with regards to their own organization’s goals and objectives.  The landlord has to take into account that the necessary financial due diligence has been performed and the organization is prepared for the legal ramifications if ANY PART of the contract is broken.  Thus, it is essential when provided any document that requires signature that it is taken to someone else for further review.  Take it to your spouse, your associates, your financial partners, your attorney, your accountant, your shareholders.  If your firm is fortunate enough to have real estate representation that will not charge you an arm or leg, take it to your broker.

Typically, the mistakes that we see from physicians (especially independents) is that of discounting the lease instrument and the level of sophistication and comprehension necessary to interpret this contractually-binding obligation effectively.  As an example, if there are 10 items that are conveniently written to control one party of a transaction, does the other party know all 10, or just 5, or 2?  Remember, it is already popular culture that a physician is not a savvy businessperson, which does not speak of their collaborative efforts.  All kidding aside, it is of paramount importance to fully comprehending any contract or, at the least, obtain verbal or written interpretation through fiduciary relationships.

Now, for the really bad news.

The field of experts that truly understand medical contracts and can convey its purpose, as well as its fine print requirements to your organization, are few.  Because most healthcare real estate real estate experts understand this, they will typically work for a 5 to 10 percentage premium over the traditional brokerage firm’s marketed commission or consulting fee.  You may be fortunate to locate a highly skilled healthcare unit, but beware the temptation to accept their services for both sides of any transaction for reasons that I do not need to explain further.

To summarize, our readers should be acutely aware of the needs of their organization first, prior to contracting with any commercial or medical real estate agreement.  They should also make sure they have brokerage or counsel that can perform the necessary tasks associated with YOUR transaction, which should be compensated by their firm.  Until then, we can keep combing over the mistakes, some of which will cost our clients bankruptcy, until lessens are learned.

This article was written by Robert S. “Bob” Lowery, Managing Partner with MREA | Medical Real Estate Advisors.

10 iPad Apps for Commercial Real Estate Brokers

Dropbox – Free service that lets you bring your photos, docs, and videos anywhere and share them easily. Never email yourself a file again!

Loopnet – Access the largest commercial real estate listing service online. Search commercial properties for sale or lease, obtain commercial loans from the industry leader.

CostarGo – Buildings for sale, sales comps, spaces available, floor plans recent lease deals, agents, landlords, principals and prospects, detailed tenant information, including lease expirations, stacking plans and contact information.

Dragon – An easy-to-use voice recognition application powered by Dragon® NaturallySpeaking® that allows you to easily speak and instantly see your text or email messages. In fact, it’s up to five (5) times faster than typing on the keyboard.AutoCAD WS

AutoCAD WS – Cloud-based CAD editor from Autodesk.

ESRI – With the free BAO for iOS app, you can access key demographic and market facts about any location in the U.S.

Sign-n-Send – Signing documents has never been easier! Sign any PDF and Microsoft Office document straight from your iPad and send it via e-mail!

Photoshop Express – Enjoy having your photo and video library right in your hands — without wasting your device’s valuable storage space. Photoshop Express is a companion to Photoshop.com, your online photo sharing, editing, and hosting resource.

Pro HDR – Automatically create stunning full-resolution HDR images with just a single tap!

ScanBizCards – Best business card scanning software app.  Although not designed for the iPad, brokers may scan and send your business cards and update your contact management software to utilize on the iPad.

Coming Soon – 10 more apps for the intermediate – advanced users! –  Robert S. “Bob” Lowery

Fundamental Differences Between Commercial Real Estate and Residential

Our broker brethren on the residential real estate have opened doors to excellent opportunities for our group to capitalize.  Working within our 28-person commercial real estate brokerage office that covers entire Houston area, we are fortunate to have residential offices disbursed throughout the community.  Our continuous feedback with approximately 10 Coldwell Banker residential agents, provides us with invaluable data and significant advantage for our clients who are searching for growth or upside in a commercial property investment. We regard this residential data as absolutely essential for future, telling real estate trends in the Greater Houston area.  It is important to recognize that if not for residential real estate stability, commercial real estate would cease to function properly.

These two cousins (residential and commercial) appear to be similar from the standpoint of a lay person, yet as any seasoned investor or broker will tell you, they could not be more different.  The easiest way I can explain this difference is that a residential investment transaction tends to rely more on investor/buyer emotion and ability to move a tenant in quickly, whereby the commercial real estate transaction is closer in similarity to any large business transaction with several moving parts and people.

We have highlighted 5 advantages and 5 disadvantages when purchasing a commercial property over residential.

The advantages:

  1. Longer Leases and Peace of Mind

Unlike a residential rental agreement, which might be as short as 6 or 12 months, commercial leases can be anywhere from 3 to 20 years in length. And, they are typically secured by bank guarantees when/if default occurs.

  1. Commercial Tenants are Responsible for Minor Repairs

Within the majority of commercial leases signed today, tenants are footing the bill for repairs within leased spaces. As a bonus, they need the property to be in the best possible condition for clients and employees, as the bar is set high. So, not only do commercial tenants save you time and money, in some cases they will improve and add value to your property.

  1. Strong Return on Investment

Commercial property returns on invested capital is typically somewhere between 7% and 10% after expenses.  Deductible items are also attractive because of favorable depreciation rates.

  1. Regular Rent Increases

Commercial rents are reviewed every year and increased in line with inflation, or by 4%, whichever is more.  Many commercial leases that we see are offered at a certain price for the first year, but escalate by 25% within a 5 year period.

  1. Tenant Mix

To reduce the risk of being stuck with excess space in the building, most educated investors maintain a blend of stable long-term leases and short-term, placing less secure tenants on higher rent.

The disadvantages:

  1. Finding Replacement Tenants Can Take Time

For the most part, it’s a much larger decision to move an entire business than it is to move into a new rental home.  So, while commercial tenants can be with you for many years, it can take many months to find a replacement to fill space. Investors will need to allocate resources for this expectation.

  1. Prices are Typically Higher

Generally, commercial real estate is a larger purchase than residential, especially in prime locations.

  1. Larger Down-Payments Required

To protect against the risk of losing a large tenant and not having that replacement, lenders will require the investor to place a larger down-payment.

  1. Risk of Loss

Although most commercial tenants are responsible for repairs in their space, the larger items are the responsibility of the investor. It is also common for the building to have ongoing maintenance and security issues so hiring a management company becomes an absolute must and is factored into most property investments.

  1. Barrier to Entry

Banks and other lenders are more rigorous in their lending process for a commercial property investment than for residential and building owners are more selective when choosing a tenant.

Please contact Robert S. “Bob” Lowery for any commercial real estate related questions.

Even The Match With Tenant Representation

A business lease is one of the most important documents a company will sign. They set and forecast the obligations that will govern tenancy for a certain time period.

A poorly negotiated lease may result in inconvenience, financial hardship and a disruption to the business. At worst, you could be held captive by a lease if the ownership was not carefully negotiated regarding every facet of its tenancy, starting with the rate calculation.

When searching for office space, the landlord requests a certain asking price per square foot.  After negotiations take place, it is common for a tenant’s psychology to change when the rental rate moves in either direction.  For example, if the tenant has been provided a 20% reduction from the asking rate, it changes for the better. But, what is not widely publicized is that knowledgeable landlords will replace reductions with other items throughout the lease, so as to influence to their favor.  If they do not, well, the asking price was probably too high in the first place.

Are lease negotiations tilted to favor landlords?

Three years ago, we tracked a landlord hoping to lease a building for $18 per square foot and would have provided a tenant with six months of free rent and a generous allowance, if not turn-key the space.  Today, that same landlord wants $24 per square foot with little to no free rent, while offering half of the tenant improvement money. The economics are built-in to favor landlords, especially as ownership becomes a greater luxury.

When does the psychology come into play?

It can be mentally satisfying when anything is purchased at a discount. Getting a deal is one of our greatest pleasures in life. But some landlord markups are done with the sole intention of ending up at the ‘discounted’ rent price. Knowing this, does it still make you feel good?
For instance, the landlord is asking $18 per square foot for a space and settles at $15 per square foot, which was anticipated all along. Or think of it another way: Does it make you feel better to know that most of the landlord spaces that you are interested are working under the same philosophy?

Doing business with honest, reputable professionals who are problem solvers rather than problem makers is definitely worth a premium. But what if your organization chooses to work without this kind of counsel, rather, you may be working with a problem-maker, one who also provides poor property management and packs operating expense pass-throughs?

What is the basis for rent escalations?

While most people understand inflation, they cannot comprehend the annual inflation levels that commercial property owners incorporate into their rental increases. The U.S. inflation for the last 10 years has averaged less than 4 percent compounded, yet commercial owners have increased rents greater than 12 percent compounded per year.

These extravagant inflation averages make sense to landlords because their math has been reverse-engineered. The landlords pay whatever they need to in order to secure the purchase of the property, then they look back into the rental rates required in order to support the purchase price. Supply and demand, positive or negative net absorption, job gains or losses, those notions don’t have one iota of influence over this rent calculation. These landlords are operating in a vacuum, so why should they be concerned about universal issues like employment data?

You certainly do not have the advantage…

The negotiations favor the house or, in this case, the building and its owner. Not unlike Las Vegas, the house wins far more than it loses.

It’s very important for tenants to play the game with all of the advantages available. This is where hiring a tenant representative becomes invaluable. While most of the tenant reps in the Greater Houston area do not have aces up their sleeve, they are able to see the cards being held by the landlord. For consideration, regardless of how much a landlord is asking in rent, it is important to know how long the space in question has been vacant. Additionally, is the building well run, and will the tenant actually enjoy being in the building in several years? Or worse yet, does the landlord in question nickel-and-dime tenants to death in order to work their income statement to their direction, sacrificing the landlord/tenant relationship for a hopeful sale of the property?

The way to combat this growing problem called ‘arbitrary landlord markups’ is to be represented. An office lease is certainly a maze, requiring an expert advocate to protect tenants from being skewered with myriad hidden costs. Tenants are not prepared with the proper questions to ask, and NOT to ask, much less the answers they should be prepared.

Especially now, representation requests for real estate leasing, purchasing and selling is at all-time high; a premium, due to the fanciful mistakes that have been made in years past.  If you do not believe it, on your next commute, take a look at all of the real estate signs that litter the roadways.  Which one and why is the question you should be asking?

We can help.

Leasing Vs. Owning

Given my history, whereby I have reaped greater financial reward by representing buyers and sellers,  in my honest opinion, leasing is typically a better option for most business owners – rather than owning. Sometimes, local situations may justify owning commercial real estate. We all know stories about the business owner/operator whose real estate was in the path of growth and was bought out by a developer for substantial profit. We also know the purchaser who ran into a very timely deal when competition in the marketplace was thin.  The romance of owning real estate can be compelling and hindsight is 20-20. But, in other circumstances, real estate proves cumbersome and has inhibited the growth of many core business models. A lesson can be learned from large corporations who rarely choose to own their buildings. Often they sell, or sell and leaseback their real estate to get it off their books. Here are a few reasons why leasing is typically better than owning:

  1. Leasing affords more flexibility to expand or contract. It’s a less complicated to renegotiate lease terms than have to dispose of a building in a soft market.
  2. Buying and selling commercial real estate is a matter of market timing that professionals are better than any novices. As we have witnessed, those new to the game often buy at the top of the market or sell at the bottom.
  3. Business owners often make commercial real estate buying or selling decisions based upon the needs of their business rather than the real estate market. One of the two will suffer.
  4. The business may be neglected because of real estate management distractions. Real estate management is best performed by professionals.
  5. Selling a business may be more difficult if the buyer is required to buy the real estate as part of the transaction. The seller is negotiating on two fronts and one will have a diminished outcome.
  6. Precious working capital is tied up in financing the real estate.
  7. You can only write off interest expense (not amortization) on a mortgage while lease payments are 100% deductible.
  8. You can end up with phantom, taxable income when selling a depreciated building.
  9. You should be spending your time shaping your business and not dealing with the day-to-day maintenance and management headaches of owning a building. Let the landlord do it.
  10. Income-to-asset based ratios are improved by not owning real estate, which may help public companies compare better to others in the same industry.

As a reminder, whether leasing, buying or performing a sale-leaseback, our team services office and medical real estate owners and users in the Greater Houston area.  At your convenience, please provide a simple phone call to our office to determine how we may improve your position in the local marketplace.

The ideas and opinions discussed in this article are subject to change, especially given the proposed FASB/IASB rules.

6 Sublease Tips For Existing Tenants

With an abundance of rent space about to wash ashore, it may be wise to address your excess space or locations, before the next wave of renewals and relocations batter the Houston commercial real estate market.  Because this market currently favors landlords and tenants that control space within a well leased and managed or highly trafficked location, depending on the nature of the business, we suggest taking advantage of an engaged subleasing market to locate other potential users. When analyzing space to sublease, the following factors should be considered:

Space to Sublease

  • How much space is to be sublet?
  • What is the average transaction size in the market?
  • How many competitive blocks of similarly sized space exist?
  • What is the absorption of those sized units in the marketplace?

Once all of these questions have been asked and answered, the user will have a better understanding as to how long it should reasonably take to lease the space.

Configuration of Space

  • How is the space configured?
  • What is the utility of the layout?
  • Is it primarily offices or substantially open space?

The configuration of the space will also determine how easy (or difficult) it will be to lease. For example, a medical office space consisting of nothing but private consulting offices will be extremely difficult to sublease, as most office space users seek a balance between private offices and public workspace. Accordingly, subleasing that type of space will take longer than space with a better balance of private offices and workstation areas.

Furniture, Fixtures, Equipment, Etc.

In certain circumstances, the configuration of the space may be enhanced by leaving the furniture and fixtures in place. In this manner, a prospective user will not have to incur the additional costs and longer lead times associated with obtaining new and/or used furniture for this requirement. Consequently, in subleasing space, consideration should be given – and value should be sought – for subleasing space complete with furniture for both private offices and workstation areas if that represents a competitive advantage.

Lease Term Length

There is a traditional “predisposition” to find a subtenant whose needs with regard to term coincide with the term of the prime lease. However, this is not always possible. Accordingly, in marketing the space, the minimum term acceptable should be understood and dealt with. In certain circumstances, a landlord may be prepared to offer a longer term to a creditworthy subtenant, thereby creating an opportunity for the current user to eliminate all liability. Term is a critical factor and always needs to be viewed.

Rent

Simply stated, sublet space should be priced to move. The longer it takes to sublease, the more expense incurred and the less the percentage of recovery. In most markets today, it is virtually impossible to make money on a sublease transaction. Accordingly, and to repeat a theme, the goal is to move the space to minimize loss, not maximize potential (and actually illusory) gain. To that end, a rental structure should be developed which provides the marketplace an incentive for taking the space.

Improvements

In the real world, sublet space does not usually offer 100% of what the new user requires. Accordingly, money is needed for recarpeting, repainting, some construction work, etc. Many firms subleasing space prefer to grant free rent as opposed to providing cash for improvements. Irrespective of the approach taken, one thing is certain – firms subleasing excess space need to be prepared to address the concept of providing monies for improvements to the space if they expect to successfully sublet the space.

Medical Lease Checklist

As commercial real estate practitioners are aware, most leases contain provisions that require a tenant to be in compliance with all applicable laws, but medical leases must specifically address and require compliance with Healthcare Referral Laws. While there are many similarities between standard commercial office leases and medical office leases, many considerations pertaining to and regulations contained in the Stark Law and the Anti-kickback Statute are unique to medical office leases.  This is especially true in leases where both the landlord and the tenant are physicians or other healthcare providers. These rules are designed specifically to prevent physicians and other healthcare providers from receiving payments based on the volume and value of the referral of patients.

In a standard commercial lease, the ownership by the landlord and the relationship with the tenant rarely have an effect on the structure of the lease or the determination of the rental rate. In the medical leasing context, however, the ownership structure of a landlord and the relationship of the tenant will impact whether a valid relationship may occur.

As for the lease itself, we have provided several items that we suggest you have handy when preparing to enter into a binding relationship with a landlord, tenant or third party.  Each bullet point has a detailed explanation to which we suggest contacting an attorney that is privy with Healthcare Referral Laws.

Medical Lease Checklist

  • Standard office lease review
  • Stark Issues
  • In writing, signed by parties, identify rental space
  • Term for at least one (1) year
  • Rent at fair market value
  • Set in advance (four (4) elements for amended rent)
  • Tenant improvement allowances
  • Landlord concessions
  • Holdover rent must be consistent with market
  • Amount of space is reasonable and necessary for proposed use
  • Lease is commercially reasonable even if no referrals
  • Holdover no longer than six (6) months
  • Subleasing and Timesharing Arrangements
  • Subleases must independently qualify
  • Sharing of common space/staff issues
  • General prohibition on per-click arrangements
  • Durable medical equipment issues
  • Protect against issues created by change in tenant/landlord ownership
  • Allow amendments for compliance with regulations
  • Medical qualification provisions – hospital staff obligations
  • Hospital-imposed use restrictions
  • HIPAA privacy and security concerns
  • ADA compliance issues
  • Excluded individuals
  • Use restrictions to limit practice area
  • Medical wastes – clearly document responsibilities
  • Utility services – ensuring continued service
  • Signage issues

Tough Questions When Leasing Commercial Real Estate

To say that leasing commercial real estate is complicated is 100% understatement.  That is why transactional experience when hiring a tenant representative, above all, will provide a tenant with a true advantage in any negotiation.    If you do not believe it, see how you measure up when answering the questions below.

Contact us for the answers to these questions and others that you may encounter when leasing commercial real estate.

For  The Tenants…

  • Often people intend to incorporate but have not actually done so at the time the lease is signed. What are the ramifications should this occur?
  • Landlords often tie increases in base rent to the Consumer Price Index (CPI), is there any rationale for this? What are some of the common pitfalls in CPI operating expense escalation clauses?
  • When does a percentage increase in the rent result in an undue windfall for the landlord?
  • Why do many “standard form” leases deal with operating expense and property tax escalations separately? Why should a tenant object?
  • If you are a 501C corporation, how can you seek financial benefit from your non-profit status?
  • In a newly constructed property, why would the tenant often request a “net” or “$0.00 dollar stop” lease?
  • Which is better for the tenant, a lease which doesn’t “gross-up” operating expenses or one where the “gross-up” is calculated as if the building were 95% leased?
  • What are the 20 items that the careful tenant most frequently requests be excluded from the definition of “operating expense”?
  • What successful strategies do sophisticated tenants utilize in seeking to limit their potential exposure for holding over at the end of the lease term?
  • The landlord has asked to be indemnified against everything, what are the tenant’s negotiating positions?
  • What are the concerns that a tenant ought to have regarding the condemnation provisions of the lease? What is the one provision that sophisticated tenants typically add to the landlord’s “standard form lease”?
  • Most significant arguments with respect to rent abatement and set-off arise over the landlord’s services clause – the tenant wants a right to set-off rent in the event that necessary services are not delivered. Since landlords typically resist this concept, what are some compromise positions that will still afford the tenant some protection in this regard?
  • Most leases provide for the landlord to be able to relocate a tenant to “similar” space. If the tenant is unsuccessful in striking the clause outright, what are the tenant concerns that the lease should address?
  • Construction delays or perhaps a current tenant holding over could result in possessory delays at the beginning of the lease term. How can the tenant protect themselves with respect to their own commitments, most notably the commitment to vacate their present space?
  • How does the terms “rentable”, “usable” and “building factor” affect the tenant? With respect to the efficient use of square footage, how does the tenant achieve a true apples-to-apples comparison between buildings? What are the “rules” and who sets the measurement standard. If a re-measurement of the building results in the tenant’s rentable square footage increasing, will the rent increase?
  • What limitations on its liability should the partnership tenant seek to incorporate into the lease?

The Landlords…

  • Who has “apparent authority” to sign on behalf of a corporation and when is it necessary to obtain a board of directors’ resolution? Who can sign on behalf of a limited partnership tenant? What are the ramifications if a lease is signed before a company actually becomes incorporated?
  • Why is it often better for the landlord if the lease handles operating expense and property tax escalations separately?
  • From the landlord’s perspective, should the “gross-up” of the operating expenses be calculated as if the building were 95% leased, or would 100% be better? (This one may surprise many landlords but let me give you a hint…not having any “gross-up” provision is far worse!!!)
  • Under what conditions, with respect to the casualty provisions of the lease, would a landlord who agrees to a specific obligation to restore or insure have an exposure to the tenant for breach of contract?
  • When would the extent of the landlord’s obligation to restore the property after a partial condemnation be a concern?
  • Why is it a problem when a tenant requests that the landlord will be “reasonable” in approving assignment or sublease requests?
  • Why is maintaining the integrity of the “subordination” clause of paramount importance to the landlord? What are some practical approaches that can be taken in response to tenant concerns?
  • Why should a landlord resist a tenant’s request to extend the timeframe in which they must furnish an estoppel certificate?
  • Are there alternatives to simply striking the Landlord’s Lien clause in a lease?
  • Sophisticated tenants recognize that their leverage is minimal in a disputed default because of the landlord’s right of termination and acceleration. If the tenant seeks to limit this effect, what should be minimally required of the tenant in return?
  • The relocation clause is probably the most often struck section in a lease agreement. What are some compromises that would help the landlord retain at least some of the flexibility afforded by this clause?
  • How can a landlord respond to the tenant’s concerns over possessory delays at the beginning of the lease term?

Robert S. “Bob” Lowery – Experience Matters.