Landlord Wants From A Tenant

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A landlord wants tenants if they meet this criteria:

1) A personal guarantee means that YOU are personally responsible, and the landlord or franchisor entity can go after your personal assets and bank account. Try a larger security deposit, or sharing the entity financials (after an NDA is signed, of course!). If there is a default, only the legal entity should suffer, not you personally.

2) If you sign a personal guarantee, and you are married, remove the partner. The landlord or franchisor may have access the legal entity and those of the guarantor, but joint marital assets (or separate property assets) that belong to a spouse might not have to be attached.

3) If you’re going to sign a guarantee, try to limit the time period. Set the guarantee to expire after a certain amount of time has passed or upon certain conditions (such as proof of the assets of the legal entity).

4) Alternatively, limit the personal guarantee. A capped amount will indicate the maximum amount of exposure for which the guarantor is personally liable.

A guarantee is a very personal thing. Let’s discuss how to minimize your personal exposure and protect your assets.

Security Deposit

But while most owners of smaller office buildings tend to prefer cash deposits, he notes that a cash security deposit does not protect against bankruptcy because it becomes part of the bankrupt estate.

He, therefore, recommends that a security deposit be in the form of a letter of credit, which is an agreement between the bank issuing it and the landlord and so does not become part of a bankrupt estate.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Why Would You Sign A Triple Net Lease Agreement?

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Triple Net Lease Form- Why Would You Sign One?

A “net” is an expense related to the lease. A “triple net” lease will refer to the three “nets” of commercial real estate leasing- real estate taxes, property insurance, and common area maintenance, or CAM (sometimes referred to as OpEx, or operating expenses). The triple net lease form is not a completely hands-off experience for Landlord, and it’s not owning the property in all but name for Tenant, either. Both parties must negotiate the triple net lease form carefully to set expectations, and downloading and signing a triple net lease form that isn’t tailored to your situation can create disastrous results.

Attraction of a Triple Net Lease Form

The triple net lease form (or NNN lease form) is attractive to Landlord- it’s guaranteed rental income while Tenant pays the NNN expenses.  It’s attractive to Tenant, too- a long-term lease, lower rent and flexibility with the building, since there’s no capital investment to purchase the land.

It Can Get a Little Tricky

A triple net lease is easier if there is a single tenant occupying an entire building.  If Landlord has multiple tenants and shared facilities or common areas, then the accounting and applicability gets more involved.  Tenant should contribute Tenant’s Proportionate Share of the NNN expenses to Landlord, and Landlord is responsible for using that money to make the payments for the insurance, tax, and operating expenses. Tenant’s Proportionate Share is based on how much space is occupied in relation to the property as a whole.

When you’re negotiating your triple net lease form (or, rather, you’re working with your professional team to protect your interests and mitigate your risk), focus on these three triple net expenses and how each party will approach them in negotiations:

Insurance

Tenant pays for all or a portion of the insurance cost on Landlord’s property. Negotiate this section carefully:

  • Coverage should be adequate
  • Insurance company should be properly qualified, not just the lease expensive
  • Make sure Landlord is informed of coverage changes/lapses
  • Tenant should have to report/file a claim with a claimworthy event occurs

If Tenant doesn’t meet the insurance requirements, Landlord can default Tenant under the lease, but meanwhile, and pursue remedies that way, but meanwhile, there’s damage and no money to fix it. Also, if Tenant violates the insurance (like arson), then there’s no coverage, even if Landlord is listed as additional insured.

CAM/OpEx

This section should be highly negotiated in your triple net lease form, especially if this is a multi-tenant location.  Be very specific about what expenses are included, and excluded, from CAM or OpEx. Negotiation tip: watch for capital expenditures, insurance charges as part of CAM if already paid as a separate charge, and maintenance contract requirements.

Landlord should be very clear on the maintenance requirements and quality of work that Tenant is responsible during the Lease term.

Taxes

Who can protest the tax bill?  If no one protests it, and taxes increase more than those of comparable properties, Tenant is stuck with a higher bill, and Landlord may have difficulty finding a new tenant at the end of the lease term.

A triple net lease form involves a lot of negotiation and understanding the long-term consequence of those negotiations. Getting a form online won’t provided the customized solution necessary in this complex Landlord-Tenant relationship.  It’s important to have an experienced team in place to guide you through the process of negotiating a triple net lease form.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Commercial Sublease Ins and Outs

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Commercial Sublease

A commercial real estate lease agreement is a lease between Landlord and Tenant.  But Tenant might have too much space, and want to bring in an additional tenant to share the space, and the costs.  Alternatively, the space might become too big or too small for Tenant, and it makes sense to have someone else take over the entire area.  That’s a situation where you need a commercial sublease.

Definitions

Landlord (lessor)- owner of the space

Tenant (lessee)- the renter of the space from the Landlord, may also be referred to as Prime Tenant

Subtenant (sublessee)- renter of the space from the Prime Tenant.

Lease- original agreement between Landlord and Tenant, may also be referred to as Master Lease

Sublease- agreement between Prime Tenant and Subtenant

Landlord’s Consent

The Master Lease will usually require Landlord’s consent to any Subtenant that Prime Tenant may propose.  Negotiation tip: Don’t rely on Landlord’s absolute discretion as a consent standard. Landlord may also charge a fee to review Subtenant for consideration.

The consent should either be a neutral standard or it should state exactly what criteria Landlord will accept for a subtenant.  Common factors include: the creditworthiness of the subtenant, if the use of the subtenant will compete with existing tenants or place an undue burden on the building (such as utilities or parking) and signage requirements.

Subleasing without Landlord’s consent, if it is required, can result in a whole host of financial and legal penalties.

Liability

Landlord may also require that Prime Tenant remain liable under the Prime Lease during the term of the commercial sublease.  This basically means Prime Tenant is acting as a guarantor for Subtenant, so if rent isn’t paid in a timely fashion, or there is damage to the space, Landlord can look to Tenant for remedy, even if Subtenant is at fault.

The Master Lease agreement will control over the commercial sublease. Everyone still has to abide by the conditions of the Prime Lease.  Subtenant should make sure it receives a copy of the Master Lease and any amendments or modifications.  Some of the information may be confidential (maybe they don’t want to share the name of the Landlord or the primary rent amount), but it’s important to know what Subtenant is being legally bound to. If Prime Tenant won’t share a copy of the Prime Lease, that is a big warning sign.

Subtenant should be aware of Prime Tenant’s financial situation.  If Subtenant pays rent to Prime Tenant, but Prime Tenant doesn’t send that payment to Landlord, there may be a lease default, and Prime Tenant and Subtenant could be terminated from the space.  Negotiation tip: make sure that Landlord can require Subtenant to pay Landlord directly in the event that Prime Tenant defaults.  That way, Subtenant has a better chance of staying in the space!

A commercial sublease can be a great arrangement if Tenant grows too big for the space or doesn’t need the entire space.  A Subtenant can help offset Tenant’s costs, and Landlord can get paid in a timely fashion.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

 

Buying Online And Picking Up In Store

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The relationship between online traffic and physical locations is still being understood, but data suggests the relationship is not mutually exclusive, but rather mutually beneficial. A 2017 study found that for each dollar that is generated in online sales from reviews, another $4 to $6 is generated in sales at a brick-and-mortar counterpart. This reveals a significant motivator for online sales: information and transparency. Consumers will spend days, weeks or even months researching a product, and will often opt to purchase the item in-store. Web-based sales channels are not taking retail sales from brick-and-mortar locations; the information they provide online is driving new sales to the brick-and-mortar counterparts. Savvy retailers with a knack for creating an inviting destination for consumers can see a positive future for retail.

Its online web traffic essentially acts as a funnel to the physical location and translates into sales of over $3,000 per square foot, according to one analysis. That is higher than even Tiffany’s. Today’s retailers use the information they gather about their customers to make more informed real estate decisions.

Landlords are more open to on-line concepts, investors are slower to follow, and prefer national names on rent roll; smaller retailers sometimes outperform national competitors.

National concepts are notoriously difficult to work with, especially those with low margins. Some use their collective set of negative landlord experiences to push for tenant-friendly leases. Landlords have, in the past, given up key negotiating points because the increased value with a national tenant offset most negatives or financial loss. Online-only retailers opening their first locations do not have the experiences with landlords, economic downturns and so on to know what to push for, nor do they provide owners with the same increase in value to the property. On the other hand, this is a reason why many investors, tired of being pushed around by major tenants, are inviting new players to the table, and why we are seeing local tenants obtain locations that historically they would not have been presented with.

Consumers are spending their time researching online but walking into stores in search of an experience. The data collected from consumers online can be used to create exactly what shoppers are looking for and retailers must be prepared to meet that need.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Building Lease Agreement: Step-By-Step

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What’s Important Financially in a Building Lease Agreement?

When negotiating a building lease agreement, whether it is a retail, office, industrial or another type of commercial real estate, the Landlord will usually provide the first draft of the lease agreement.  It’s probably Landlord’s standard lease document, but the terms of a building lease agreement can (and should) be negotiated.

Landlord’s lease agreement is a draft, a first offer.  An experienced, ethical Landlord will expect some changes and negotiation to the document.  The document should evolve from a landlord-drafted standard lease form to a customized, negotiated document that is a mutual agreement between both of the parties.

Rent may not be the only charge Tenant pays to Landlord. Tenant should understand what legal and financial obligations it is taking on by signing on the dotted line. The best time to negotiate and to ask questions and to clarify obligations is before the lease is signed and legally binding.  When Tenant reviewing the building lease agreement, here are a few financial items to look for and negotiate:

Additional Charges

  • Utilities- billed directly to Tenant or Landlord will bill Tenant for its share, or some combination thereof.
  • Percentage Rent- if Tenant sell a certain amount of product (usually not services) from the location, Tenant pays a percentage of those sales to Landlord. This is most common in a retail situation.
  • Penalties- late fees or interest charges if payments aren’t made on time.
  • Maintenance contracts- Tenant may be required to pay for inspections or maintenance on the HVAC (heating, ventilation, air conditioning) or other systems
  • Construction costs- who pays for what, including construction related to the Americans with Disabilities Act of 1996 (ADA)

 

Security Deposit

  • The total amount of the security deposit
  • How it can be used- damages, late rent, for late fees and penalties, etc.
  • How do you get it back at the end of the lease? Negotiation tip: put a time limit on when the security deposit, or balance, is returned to Tenant.
  • If the security deposit is used, is there a replenishment requirement?
  • The rent may increase during the term- it could apply to the security deposit as well.

NNN (Triple Net Expenses)

  • Taxes- tax due on the real and personal property
  • Insurance- Tenant should carry its own and may contribute to Landlord’s cost as well if there is a common area
  • CAM/OpEx- common area maintenance or operation expenses are contributions to make sure the areas everyone shares are maintained.

 

Contingent Expenses

  • If the space becomes too big, too small, or too expensive, Tenant might have the ability to sublease or assign all or part of the space. Landlord may charge a review fee or may require Tenant to guarantee the remainder of the building lease agreement term.
  • Tenant could negotiate a buyout or early termination right, but there’s usually a financial penalty attached.
  • If Tenant defaults, and Landlord cures the default at its own expense, determine what charges Landlord can collect. Negotiation tip: Landlord might accelerate damages to get them all at once, instead of waiting as they come due.  Watch out for the present-day cash value!

 

The building lease agreement is an expensive obligation, and Tenant should be prepared, legally and fiscally, before signing the lease document.  It’s important for Tenant to have a team in place, and to make sure to review and understand its financial obligations under the building lease agreement.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Why Contracts Are A Necessity!

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Contracts exist for the protection of all parties so that the price, terms and conditions can be agreed to in writing without misunderstanding. The best contracts are those that are written in plain English where nothing is left to ambiguity or misinterpretation.

Often problems arise when one party misses a deadline and fails to inform the other side as to the reason for their tardiness. A lack of communication can lead to conflict and sometimes even litigation if the matter is serious enough.

It behooves everyone involved with any type of contract to maintain good communication with the other parties and meet every deadline.

The two most commonly used contracts are the listing agreement and the purchase agreement. Listing agreements are usually exclusive arrangements between the seller and the listing broker. Agents represent a broker but agents themselves do not own the listing per se. The terms of the listing agreement include the beginning and ending dates, price, showing instructions, whether furnishings are included, etc.

Purchase agreements are extremely lengthy documents that contain very detailed terms and conditions along with several pages of disclosure forms. There are deadlines for the performance of specific terms such as the earnest money deposit, inspections, contingency removals, etc.

In the event that one party is unable to meet a deadline they should always notify the other party in advance and try to work out an extension so the deal can move forward in good faith.

Leases are another very common form of real estate contract where having everything in writing is critical to avoid misunderstandings.

We still occasionally see people renting a property to a tenant without any written agreement. This can be a roadmap to disaster. No matter how well you know someone, it is absolutely critical to have a written lease when it comes to renting a piece of property. It makes no difference if we are talking residential or commercial real estate.

Only by having a well-crafted lease agreement can all parties ensure there will be no disagreements over the length, utilities costs, condition of the building or any other important matters.

From time to time we see various types of option agreements involving real estate. In commercial real estate sometimes a business person will purchase an option to lease a desirable space for a property that is under construction or going to be vacant in the future. The reason for doing this is that you are risking far less money than if you just signed a long-term lease.

What if something happened to your business prior to signing the option agreement and the occupancy date? With an option agreement you are limited to the cost of the option whereas if you had signed a five-year lease you would be obligated for 60 months of continuous payments.

The lease with option to purchase is something we see with residential property, especially when someone is renting a higher-priced home that they are contemplating buying. The prospective buyer gets a feel for the property and a portion of their monthly rent is sometimes credited toward the purchase price.

The buyer generally puts up a nonrefundable deposit which may or may not get credited towards the purchase price depending on the amount of money involved and the terms the deal.

Regardless of the type of contract, all parties need to adhere to deadlines and fulfill the terms and conditions of the agreement. The whole purpose of reducing everything to writing in the first place is to ensure that everyone is in agreement in regards to price, terms and conditions.

When someone breaches or defaults on a contract it’s up to the parties involved to try and work things out as quickly and amicably as possible before you wind up with an out-of-control conflict.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Say AAH! Annual Rental Rate Check-ups for Your Commercial Real Estate Lease Investment

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The commercial real lease should be customized to each Landlord-Tenant relationship through negotiations. The investment in commercial real estate should reflect the risk appetite and investment requirements of the investors. How do you know if it’s a good investment, based on your standards?  Commercial real estate investing should be a very tailored, customized to the investor, and the legal, regulatory landscape, as well as the economic marketplace, can affect the investment decisions. Certain information is required to be disclosed, and it’s done under GAAP standards in the United States. GAAP means Generally Accepted Accounting Principles.

 

How Do I Know If the Lease is a Good Investment?

 

Until December 2019, private companies can categorize a lease as a capital lease or an operating lease.  A capital lease is reported on the balance sheet, and an operating lease is in the footnotes.  This reporting loophole has been around about 40 years, and the powers that be have decided it needs to change, since it contributed (among other factors) to the Dark Times CRE endured during the early 2000s.

 

Investors didn’t have the information they needed to make truly good investment decisions regarding commercial real estate.  So they sometimes made bad ones, and that brings us to where we are today, and the need to close this loophole.

 

What Difference Does It Make to an Investor?

 

The updated standards now provide for financing (not capital) lease and operating leases.  Finance leases are treated pretty much like capital leases, though, and it all goes on the balance sheet, so all of the information is there.  But it costs time and effort to track all of this and account for it on the income statement, and, of course, it affects the amount of available cash on hand. Here’s the trick: if you lease is 12 months or less, it can be an operating lease and go in the footnotes.  Otherwise, it’s on the balance sheets.  You want to keep that lease expense in the footnotes and off the balance sheets, it’s gotta be no more than 365 days for the term.

 

Tenant Flexibility

Short term leases are hip, trendy, and oh-so-in. Tenants like the ability to sign up for a lease that’s as agile and nimble as they are.  Plus, short-term commercial real estate leases are usually gross leases.  The rent payment is a premium price, but it’s a predictable.  There are no pass-through expenses that fluctuate and are beyond the control of the Tenant, even though the Tenant has to pay for some or all of them. Co-working, shared space and pop-shops with curated, ever-changing content are really focused on these short-term “novelty” leases.

 

Now there’s even more incentive to have a short-term lease; it’s advantageous to the balance sheet reporting requirements, and the Tenant can leave if Landlord won’t negotiate a reasonable lease amount and incentivize Tenant to remain and renew.

 

Landlord Uncertainty

Landlords only have rent income to cover their expenses, including building maintenance and attracting and keeping Tenants. Instead of passing through the additional expenses to Tenant, and keeping rent as income, and doing this for years, Tenants are looking for competitive rental rates. Landlord has to budget, plan, and forecast carefully to keep gross rent rates at a competitive amount in the market but enough to cover the operating expenses.  Shorter-term leases mean higher expenses, as Landlord has to recoup the expenses over a less-predictable lease duration, and higher potential turnover means higher potential costs, such as advertising and marketing the now-vacant space.  The long-term capital expenses and building improvements, which need to take place, won’t be predictably recaptured, because the tenant might not stick around.

 

The entire valuation model for a commercial building could be altered as a result. The gross lease means rent payments are going up, which further encourages shorter-term leases for tenants, who can move at the end of the term to a less-expensive space, or the Landlord has to offer financial inducements to keep Tenant in place after the expiration of the year lease ,OR there will have to be some sort of financial break for Tenantto take the hit to the balance sheet to stay in a longer-term lease.

 

The Landlord has less certainty.  An absolute triple net lease is now more expensive to Tenant, which means less money to pay in rent to Landlord, especially when the NNN expenses, are high.

Disclaimer:

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Finding the Right Commercial Real Estate Lawyer For You

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commercial real estate leasing, commercial real estate lawyer, lease, firm, office

Do you need a commercial real estate lawyer for your lease transaction?

Choosing your commercial real estate lawyer before the transaction is the key to success.

Choosing the right commercial real estate lawyer for your transaction involves a lot of factors. A wise client will ask about the lawyer’s commercial real estate transaction experience and the costs of the lawyer’s services. This should be done BEFORE the commercial real estate lease contract has been signed. The time to negotiate and ask questions about the commercial lease terms and agreement is before you sign!

Commercial Real Estate Transaction Experience

The commercial real estate lawyer should have lots of experience and focus on your particular business space, so he or she can advocate for you and protect your interests. The lawyer needs to be familiar with the type of property (the “asset”) class and the client base. A retail client will have different needs than someone purchasing raw land or leasing an office or industrial space.

Ask what kind of experience the attorney has in reviewing and drafting documentation, like commercial office leases or triple net leases. Find out what percentage of their practice is commercial real estate leasing. You don’t want someone who lists this as one bullet point among many- commercial real estate is complex and evolving, and a general practice law firm won’t have the experience necessary to negotiate in your best interest.

How many commercial real estate leases has the attorney negotiated? You want someone with enough experience to make sure you’re not leaving anything on the table at negotiation, and who can give you an unbiased view of the deal. The deal must be evaluated for risk appetite from a financial and legal perspective.

Commercial Real Estate Lawyer Costs

Contact your commercial real estate lawyer BEFORE you sign!!

Don’t try to save money by using a family or friend’s lawyer or Google to help you negotiate your lease. The intricacies of commercial real estate leasing and negotiations are not taught in law school. Only a commercial real estate lawyer, practice and experience, will be advocate for your interests. A web search will not substitute for a lack of knowledge. Commercial real estate is a complex and expensive transaction, and it’s worth it to invest in a knowledgeable lawyer.

Hopefully, the commercial lease transaction goes smoothly. The real estate lawyer will be working behind the scenes with Landlord’s representatives and brokers to secure your legal assets and your peace of mind. A real estate broker can’t provide legal advice, and the more complex the deal, the more legal items there will be. The broker is only paid if the transaction is completed, but the commercial real estate lawyer will advocate for your interests first.

Your Commercial Lease Transaction Is Unique

The commercial lease agreement is Landlord’s first offer, not an agreement uniquely tailored to your specific business. The commercial lease terms need to reflect the exact agreement between the Landlord and the Tenant. A good commercial real estate lawyer will take you through the lease document and explain the risk and reward of the negotiated lease agreement to you.

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

Triple Net (NNN) Lease Agreement: What Does That Mean?

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Is a Triple Net Lease Agreement Right for You?

Understanding the difference between a triple net lease agreement and other types of lease agreements.

A triple net lease agreement (it could be written as net-net-net, or NNN, lease agreement) is a common commercial real estate lease structure. A “net” is term for “expense” and the “triple” part defines the three most common shared commercial real estate expenses: real estate taxes, insurance, and operating expenses.

In pretty much any lease situation, Tenant will pay its rent, the cost of the utilities it uses, and taxes on its personal property. The rest should be negotiated, depending on the type of lease agreement.

Absolute Triple Net Lease

Just because it’s called a triple net lease, doesn’t mean it actually is one. In an absolute triple net lease, the Tenant is responsible for all of the NNN expenses. This is more traditional in a ground lease situation, or if Tenant is exclusively occupying the entire premises. In a shopping center or large office building, it’s more likely that Tenant will pay a portion of the NNN expenses, along with all of the other tenants. Negotiation Tip: Watch out for repairs and replacement, especially structural ones and who is responsible for them.

Proportionate Share Triple Net Lease

In this lease triple net lease agreement structure, Tenant should pay its Proportionate Share of real estate taxes, Landlord’s insurance, and common area expenses (or operating expenses). If the lease isn’t negotiated properly, then Tenant is likely paying more than its fair share. The Landlord is responsible for the making sure the payments are made for the real estate taxes and its insurance on the property containing the building, using the funds collected from Tenant and other building occupants. Landlord should also maintain and repair the building and the property, so that it’s safe for everyone to use. Check out my post on Tenant’s Proportionate Share to learn more.

Gross or Full Service Lease

This is pretty popular in an executive suite or co-working situation. All of the expenses (real estate taxes, Landlord’s insurance, operating expenses, even utilities) are rolled into the cost of the rent. Tenant pays one amount every month to Landlord, and Landlord pays all of the bills. Tenant will probably pay a premium rent for the convenience of this arrangement, but it’s a good situation for an all-included arrangement.

Percentage Lease

Tenant will pay the non-rent charges per the agreement (absolute NNN or Tenant’s Proportionate Share), and will report its sales to Landlord, usually on a monthly basis. Tenant will then pay a percentage of the money it collects on its sales to Landlord as additional rent, with an artificial or a natural breakpoint.

  • Artificial Breakpoint: A stated dollar amount (example: 5% of all sales).
  • Natural Breakpoint: divide base rent by the percentage (example: 5% of sales over $50,000). A natural breakpoint means that the Landlord should receive its percentage rent only if there enough sales to pay the minimum rent.

Percentage rent can be part of a triple net lease agreement or a full-service lease agreement. Landlords like this arrangement for retail or restaurant tenants, but it’s not as typical for a service-oriented Tenant. Negotiation tip: Define sales as merchandise that is bought and paid for at the location, and exclude online sales with in-store fulfillment and services.

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.

 

Who Reads the Last Few Pages of a Standard Commercial Lease Agreement, Anyway?

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What’s at the end of the standard commercial lease agreement?

Those short sections are legally binding in the commercial lease agreement and should be read and understood!

The standard commercial lease agreement will contain important information at the beginning and the end of the lease document. The beginning of the lease (before all of the numbered sections), also known as the “whereas” clauses or “recitals”, are like an introduction. They should provide general information, like the purpose of the contract and who is signing it.

RECITALS

A good commercial real estate attorney will read all of those recitals, and confirm that the information they contain is correct. The signatory entity name might change, or the suite number might not be the right one. It’s not unheard of to have an entirely incorrect address, especially if Landlord owns multiple properties and uses the same lease form for each one.

These recitals matter, and they are easy to catch and change during lease negotiations. The fun begins at the end of the lease, where important items linger that are easy-to-skim-over stuff before the signatures and the exhibits. Even if these items are the last ones in the commercial real estate lease agreement, that doesn’t mean they aren’t important. All of that “other miscellaneous stuff” is just as legally binding as the first part of the lease, or it wouldn’t be there.

OTHER MISCELLANEOUS STUFF

These sections can address innocuous things like pronoun use, or provide state-specific disclaimers (such as radon gas in Florida or CASp inspections in California). Tenant could agree to abide by the Patriot Act or OFAC rules (good!) or become bound to not record a lease (bad news in Louisiana).

These sections could include a catch-all provision. For example, instead of stating a specific notice and cure period each time default is addressed in the lease document, the drafter might put all of the notice and cure provisions together at the end of the document and make it a stand-alone section, which is applicable throughout the lease. That’s not a problem- unless it contradicts a previous section in a lease! It’s important to treat the lease as a holistic document. If a section is disclaimed or limited by another section, it’s vital to check those referenced sections in other parts of the document.

WATCH FOR INCREASED OBLIGATIONS

“Other miscellaneous stuff” sections could also impose additional obligations or limit the rights of the parties to the agreement. For example, a clause at the end of the commercial real estate lease agreement could give away venue for disputes from a Tenant-friendly to a landlord-friendly state, or even surrender litigation options in favor of forced arbitration.

Another example is that Tenant could be required to provide financial statements, whenever Landlord requests them! Negotiation tip: limit how many times these have to be provided to Landlord, once per calendar year is usually sufficient. Bonus negotiation tip: be alert for what is missing in these sections. In the financial statements example, is there a requirement for Landlord to keep these statements confidential?

It’s absolutely vital to read the entire standard commercial lease agreement from beginning to end. If you don’t, you might be surrendering important legal rights that might be in another section of the commercial real estate lease document.

This article does not create an attorney-client relationship. This article is for general education purposes only and is not legal advice. You should consult with a qualified attorney before you rely on this information.