Jun 14th

Commercial Lease Clauses

By Gary Tharp
Commercial Lease Clauses
You should include introductory clauses in your lease that do
the following:

• Describe the premises
• Specify the lease term
• Indicate the rental or lease payment amount

Many times, you will be dealing with a five-year lease. Therefore, you need to explain in the lease, how rental increments will happen every year over the period of the lease.
You could also include additional tenant conduct, indicating what tenants can or cannot do. This is where you would specify whether they could assign the lease, sublease it, or limit it to subleasing—subject to landlord’s approval.

Signage
 Signage becomes a problem in some places such as Florida, because of hurricanes. One of the most serious threats to life and limb in a hurricane is not the wind per Se, but the debris that the wind blows around.
If you have a sign that is not well anchored and a hurricane comes along and tears off chunks of glass or plastic, these can become deadly projectiles.
Hence, you get into a lot of code issues about how signage has to be constructed, type of materials, and other similar issues. So, in your lease, you must ensure that it includes a clause that specifies that no signs can be erected on the property without:

1. Landlord approval
2. Proper permitting through the local county officers or local city officers, so that signs
— Meet code
— Conform to local rules and regulations

Additional Tenant Expenses
Include language in the lease that itemizes the expenses for which the tenant will be responsible, such as taxes, utilities, and insurance. A prudent policy is to require that all your tenants carry a million dollar liability policy on anything that happens on the premises.
Otherwise, if something happens as a function of their business and they are not sufficiently covered, the problem rebounds to you, because it’s your building. Be sure that your tenants furnish proof of insurance before you allow them to occupy the premises.
Tenant rights, landlord services, common areas, and common area expenses that you are going to incur and pass on to the tenant, are all standard clauses. Other clauses may pertain to preserving the premises, making repairs, maintenance, and surrender of the property.

Tip: If your tenants want to change something in the building, they must come to you for approval. After all, it’s your building!

You should also consider the rules for alterations, surrender, damage destruction, and protecting the landlord’s subordination. Be sure to specify that you have the right to enter and inspect the premises.
Other clauses to consider are those for indemnification— being held harmless, evidence of default and remedies, security for performance, security deposits, and other similar rights. Obtain an experienced real estate attorney who specializes in commercial leases, and can review and revise your lease appropriately.

Building Owners and Managers Association (BOMA)
BOMA publishes standard methods for measuring floor area in industrial buildings. You may not think this subject is an important issue, but there are many ways to measure that can affect your rental income.
Landlords have been sued, sometimes after many years, for leases that were found to include inaccurate square footage descriptions. To protect yourself always use the BOMA method and include that description in one of your lease clauses.

Jun 7th

More Commercial Lease Terms You MUST Know

By Gary Tharp
Commercial and Industrial Property Turnkey
This type of operation basically means that you construct a building the way a prospective tenant dictates, and then you rent it to them. You pay the initial cost of setting it up as turnkey, in that you put up the capital cost. You’ll recover those costs through the rent that the tenant pays over the next 5 to 10 years.
The tenant might even pay a percentage of what the cost is to build the turnkey, but you will also pay a percentage of it. You will see build-to-suit many times in rental property where the building is a shell. A tenant will not take it as a shell, but will want it built out to a certain degree.

Build-To-Suit
A build-to-suit situation is a deal in which you can negotiate who pays how much of the build-out fees. When your tenant pays a specific amount per foot in tenant improvements, that’s a built-to-suit type of situation.

Sale/Leaseback
Albertson’s grocery chain does a lot of sale/leaseback. They find suitable property for a grocery site, build a store to fit their own specifications, sell it (usually to a group of investors who like to buy their properties), and then lease it back.
They know that they can make 12 to 13% return on the money they invest in the grocery business. In the real estate business, owning real estate might give them an 8 or 9% “Cap Rate” with an AAA tenant like that. So, rather than have their money tied up in real estate at a lower rate of return, they sell the property to somebody else and lease it back. Then they can invest their money in their grocery business, where they can obtain much higher profits. This is just another financing method.
Jun 1st

Commercial Lease Terms You MUST Know

By Gary Tharp
Common Area Maintenance (CAM)
Most of the time when you have a multi-tenant building, you factor in charges for CAM. Usually tenants pay $12 a square foot for annual rent, plus a certain percentage for CAM. So CAM for a building is passed on to tenants.
Many of the issues considered in the commercial arena are not even available in residential leasing. For instance, if your commercial real estate investment target is small office warehouses, strip malls, or strip retail centers, CAM is one of the items you need to research.
Before you start renting or buying those types of facilities, you should know what the standard CAM is for your type of property. Sometimes in some smaller properties, there is no CAM, since the landlord pays it.
That’s all part of your costs as a landlord in this type of property. It’s not a pass-through, because you can’t legitimately pass through CAM expenses to your tenants, if no one in the area who owns a similar property is having their tenants pay it.
 
Percentage Leases
When you pay a fixed rent plus a percentage of sales over and above the fixed rental, you have a percentage lease arrangement. You will probably not run into percentage rent situations very often as a landlord. Most of the time, percentage rents are used in retail businesses located in large shopping centers and other similar areas.
You might charge percentage rent, if you had a $2,000,000 shopping center with a JC Penny’s, Sears, or Dillard’s, and the attraction of those mega stores brought traffic to your store. Therefore, they want to become your partner, in effect, by charging you a percentage. This is not common in small to moderate businesses.

Ground/Land Leases
This type of arrangement is where the tenant rents the land and builds on the property. Any way in which you improve the grounds, including any buildings, usually belong to the landlord when the lease ends. This is actually a form of financing.
You’ll find many ground tenants in high-cost land areas, like New York City. People don’t want to tie up personal capital in owning a piece of land when they could be putting that money into business operations. The standard land lease is a very long-term lease.

Sublease
A sublease is when you lease the whole property and then sublease a portion of it to someone else. For example, you might rent 10,000 square feet from a landlord. If you don’t need all that room, you have the right to put your own tenant onto the property using a sublease.

Assignment
An assignment is very similar to a sublease, in that you initiate the rental lease. However, you become a landlord by assigning the entire property to one or more tenants whom you manage.
There was a time when real estate investors would lease property and negotiate a very low rental rate. Then they would assign that same property to tenants at a much higher rate. Their real estate business consisted entirely of collecting money from their assignment.

Assignment Not Allowed
In some commercial leases, there’s a sublease clause stating that you are allowed to sublease the entire property, subject to the landlord’s approval. This clause, in effect, means that you cannot assign the lease. Particularly when you get into larger properties, you’ll want to be sure to personally check personally the credit of everybody who expresses interest in leasing your property.

Tip: Assignments can get you into trouble. If you don’t know whether the assignee is credit worthy, don’t assign under any conditions.
May 24th

Types of Commercial Leases

By Gary Tharp
Types of Leases
Leases are written contracts between a property owner and a tenant. These documents include references to items such as the specified amount of rent and when payment is due. Usually, the rental period is stipulated, such as a three- year lease.
Leases differ, relative to their target area. For instance, an office building lease in a city like San Francisco and a retail lease for a strip center mall in a smaller city like Sarasota, Florida, would be quite different.

Types of leases include
•Gross
•Net
•Percentage
•Ground
•Sublease
•Assignment
•Turnkey
• Build-to-suit
• Sale/Lease-back

Gross vs. Net Leases
A gross lease is one in which the owner/landlord is responsible for paying taxes, insurance and any other costs of property ownership. Most apartment leases are gross leases since you just pay rent and that’s all. Some apartments may require you to pay your electric bill, but everything else is paid by the landlord in a gross lease.
A net lease is just the opposite - basically, you pay a rental fee to the landlord and then you pay your taxes, insurance, maintenance, and all other fees and expenses   associated with the property. Therefore, when you as a landlord agree upon a net lease, the rent you receive is net income. You don’t have to pay any other costs out of it.

Triple Net Lease
 In the commercial arena most leases are net, to a certain degree. You could even have a double or a triple net lease.
A triple net lease used to mean that you would pay the rent, taxes, insurance, and common area maintenance (CAM). Nowadays, there’s no such thing as a completely net or gross lease.
Typically, if you were renting space in a freestanding facility, you would pay all fees and operating expenses associated with that area.
The great thing about a commercial lease is that the vast majority of them are net leases. A lease may be largely net, with the tenant paying rent and all of the other expenses of the property, like taxes and insurance.
However, even in a case like this, the landlord would pay something, like the insurance on the building structure itself. Therefore, the lease isn’t completely net.
Tenants insure the contents of a structure. Before the lease begins, if you have a lot of equipment, you should inspect it to make sure it’s in working order. Then, meet with your tenants and agree on procedure, should anything happen to the equipment or property.
Tip: Never allow someone else to insure your assets. The policy could lapse and you might not find out that there was no coverage until after you filed a claim.
May 17th

Commercial Contracts and Leases: Part 2

By Gary Tharp
Representations and Warranties
In a residential closing, everyone buys homeowner’s insurance because the Seller’s representations and warranties expire at the closing, unless you insist that they don’t. These are the property facts to which the Seller alleges in the sale, such as a solid roof or that no illegal action, including legal cases, are threatening against the property. Always include a representations and warranties clause in your contract that the Seller must live up to even after closing.
Although most commercial sellers won’t warrant the roof, sometimes they’ll warrant the structure. For instance, they might say that although there are cracks in a certain wall, they had testing done. They would give you a copy of that test, and agree to stand behind the safety of the wall. Any warranty that the Seller makes to you should survive the closing.

Commercial Closings
The closing, like the inspection period, is based on a formula. It starts at the end of the inspection period, so it’s like a moving window.

Brokerages
Your contract must contain language regarding any brokerages involved. If this inclusion is not applicable, each of you wants to hold the other side harmless. This protects both Buyer and Seller if a finder’s fee suddenly appears or a broker shows up at the closing, making unexpected claims.
If any brokers are involved in the deal, the contract should list each broker’s name and indicate the manner of payment. Often, they may be paid based on a separate agreement between Seller and Broker.

Key Point
Many people write contracts for themselves with no broker language. Even if the broker clause is not applicable, include the broker language in your contract.
 
Assigning a Contract
Many contracts will either not have any assigning ability checked or include no assigning ability at all. If there’s a specific paragraph that says the Buyer may assign the contract, the Buyer may freely assign it. However, if the signed contract has no assignment clause, then it is assignable. You don’t have to include an assignment clause.

Tip: To be safe, always include the assignment clause and specify whether it can be assigned.
May 10th

Commercial Contracts and Leases: Part 1

By Gary Tharp
Commercial Property Contracts and Leases
 
Contracts written on commercial property differ slightly from
those for residential properties:

Contract Differences
A residential contract is not appropriate to use for commercial purposes, because there are certain things that commercial buyers and sellers want to do that the standard residential contracts may not include:
• Delayed deposit
• Particular documents from Seller
• Extended inspection periods
• Specific representatives and warranties
• Closing commercial considerations
• Brokerage fees
Tip: Always use a special commercial contract that provides for these major differences.

Delayed Deposit
In a residential contract, the deposit check is customarily attached as a gesture of good faith and to demonstrate the ability to complete the deal. Apparently, commercial sellers aren’t nearly as influenced by this custom.
In commercial agreements, the deposit is usually received within two or three days after signing the contract. This gives everyone a chance to sign, so you don’t have several deposit checks floating in and out of escrow accounts all over the county.
Almost all commercial real estate investors use delayed deposits. If you are making an offer on a property, you write the contract and prepare the offer. Where the contract says Deposit, you enter whatever amount your deposit is going to be and say that it will be posted with the seller’s nominee.
The deposit is usually sent within three business days of all parties signing; in case contract negotiations take two or three weeks.
Commercial sellers consider this standard operating procedure. However, there may be an occasional commercial business proposition, resulting in a signed contract with no money deposited.

Documents from Seller
As part of the agreement, the seller must submit certain documents to you within a specified time, after the contract is executed, such as:
• Engineering plans, drawings, surveys, and artist’s renderings
• Economic and financial studies relating to the property
In the event that you do not purchase the property for any reason other than Seller’s default, you must return all information to the Seller, together with any information that you may have compiled with respect to the property.

Inspection Period
Your contract should also state that you have an inspection period—a free look. This period is to allow you to conduct different types of inspections and pursue any lines of inquiry for the next 60, 90, or even 120 days—whatever it will take to get the job done.  During that period, whatever deposit you submitted is not at risk. The inspection period starts when the Seller delivers the documents you requested. That way, your due diligence clock doesn’t start immediately, which gives you sufficient time to address important issues, like environmental factors.

This period is extendable, so always ask for extensions. You are determining the usability of the property and may decide not to buy it. Therefore, you must be able to give notice of termination of this agreement at any time prior to the expiration of the inspection period or any extensions. If you decide to terminate the agreement, all deposits must be returned to you.
You may extend this inspection period for up to three 30-day periods without asking for the Seller’s permission. However, you must give the Seller advanced written notice before the end of the inspection period, together with an additional deposit.