The Elements of a industrial Lease - A Tenant's Perspective
A lease is an trade granting use or vocation of real property while a particular period in transfer for a specified rent. At coarse law, the lease was traditionally regarded as a conveyance of interest in land, subject to the doctrine of caveat emptor ("let the buyer beware"). The landlord was only required to deliver possession to the tenant; the tenant, in return, was required to pay rent to the landlord. Davidow v. Inwood North pro Group, 747 S.W. 2d 373, 375 (Tex. 1988). The modern commercial lease, however, is a complicated instrument that spells out many aspects of the association between landlord and tenant, along with tenant's use of the property, services that will be in case,granted by the landlord, allocation of costs associated with maintenance of the leasehold, responsibility for utilities, improvements to the premises, insurance, assignment and subletting, events of default, remedies of the parties, expansion rights, and options to expand the lease term.
The Elements of a industrial Lease - A Tenant's Perspective
Commercial leases can be described in four categories: gross, modified gross, triple net, and absolute net. A gross lease does not want the tenant to reimburse the landlord for any of the expenses that the landlord might incur in operation of the premises. Under a gross lease, the tenant pays base rent and the landlord absorbs all costs for coarse area maintenance ("Cam"), real property taxes, landlord's insurance, and other charges associated with the operation and maintenance of the property. A modified gross lease typically requires the tenant to reimburse landlord for "pass through" costs over a stated expense stop or base year. For example, the tenant may be required to reimburse landlord for all Cam over .00 per quadrilateral foot, or alternatively, the tenant may be required to reimburse landlord for all Cam in excess of base year 2005. In most situations, the commercial tenant will be asked to sign a "triple net" lease, which requires the tenant to reimburse landlord for Cam, real estate taxes, and landlord's insurance. The "pass through" costs included in a "triple net" lease can vary, and can include supplementary items other than just Cam, taxes, and insurance. Thus, a prospective tenant will be well served to spin a proposed lease with counsel to ensure that tenant understands the nature and type of pass straight through costs it will be unbelievable to Ant. Eject under the lease. Also, in distinct circumstances, a landlord may use a "net" or "absolute net" lease, which requires the tenant to Ant. Eject All costs of maintenance and operation of the property, along with capital expenditures and major repairs. Typically, an absolute net lease is utilized where the tenant is the sole and 100% occupant of the building - for example, a bistro or an office building busy by one tenant.
Commercial leases can be supplementary described by the type of use associated with the property - office, retail, warehouse, pad, or "ground". An office lease is generally used in buildings intended for non-industrial business use. retail leases are generally utilized for shopping malls and strip centers. warehouse leases are generally seen for commercial or light commercial uses. Pad or ground leases are often used for bistro premises or for premises where the tenant will be responsible for building and maintaining the structure. Texas law does not want a commercial landlord to use any exact form of lease, and the type of lease a prospective tenant may be faced with signing will vary by the type of building, intended use of the premises, and preference of the landlord.
The lease's period and base rent are of traditional importance to the commercial tenant. Usually, a commercial lease is for a term of 5 to 20 years with fixed escalations in base rent or escalations based on an economic index, like the buyer price index. Also, the tenant may be offered options to expand the lease term or improve into adjacent or other areas of the property. Depending on the property and the landlord, lease term and base rent may be negotiable. As a normal rule, the larger the space tenant intends to occupy, the greater the flexibility the landlord will show in negotiating provisions in the lease. However, if a property enjoys a high occupancy rate, a landlord will be less likely to show leeway in negotiating the economic terms of the lease. Yet, I am reminded of two great adages of the commercial world: (1) all things is negotiable; and (2) if you don't ask, you won't know.
Also, a tenant should take care to read and understand the description of the premises contained in the lease. Most commercial leases are based on "rentable quadrilateral feet", a estimate which is regularly larger than "usable quadrilateral feet". The tenant's rent and responsibility for repayment of pass-throughs (Cam, taxes, insurance, utilities, etc.) are regularly based on the rentable quadrilateral feet of the premises. Discrepancies in quadrilateral footage and boundary lines should be resolved prior to operation of the lease, or the tenant could face unforeseen costs or possible litigation.
Many landlords offer a tenant "build out allowance" as an inducement to lease the premises. These sums, however, do not rehearse "free" money and landlord's cost of the discount is tied to exact conditions in the lease. For example, if the tenant breaches the lease and abandons the premises prior to the end of the lease term, the tenant may have to repay the build out allowance, along with landlord's other damages. The tenant should make sure it understands when and under what circumstances the build out discount will be paid.
Additionally, the tenant should understand his "lease commencement date" and "lease expiration date". The lease commencement date may or may not be on the date tenant occupies the premises. Also, the landlord may have promised the tenant a 60 month term but the lease could supply a fixed expiration date for a term of less than 60 months. Again, right scrutiny of the lease is required.
In addition to base rent, the tenant customarily will be asked to pay "additional rent", which constitutes pass-throughs (Cam, taxes, and insurance) and any other charges that landlord might deem to include in your lease. Cam, pass-throughs, and other charges reimbursable under the lease are the traditional source of tension in the modern commercial landlord/tenant relationship. The tenant wants the certainty of knowing what his rent and charges are going to be on a monthly and annual basis. The landlord wants safety from unexpected rises in taxes or the costs of providing services to the property. The key: read your lease and Know every charge you will be faced with once your tenancy begins.
In the retail context, in addition to base and supplementary rent, the prospective tenant is often asked to pay landlord a division of tenant's gross sales on a monthly or quarterly basis. The landlord regularly justifies these charges as a considerable component of compensating landlord for providing a vibrant mall or strip town for tenant to show the way business. In most commercially viable retail property, cost of division rent is unavoidable. However, the "breakpoint" and estimate of division rent should be negotiated.
Another area of importance to the commercial tenant is the services that will be in case,granted by landlord and repayment of landlord for those services. Similarly, tenant should understand those services that landlord will not provide, because tenant will be responsible for those services as an out of pocket expense. Further, unless the lease is gross, the landlord should identify the components that constitute the costs of operating the "common area" for which it seeks repayment straight through tenant's monthly Cam charges. The definition of Cam varies from lease to lease based on landlord preference, the type of property, and the negotiations of the parties. If a gross lease is not available, the tenant should negotiate the items to be included in Cam, the items that will not be included in Cam, and an annual cap or limit on expenses that landlord may effort to pass straight through to tenant.
The landlord will regularly want repayment for tenant's share of real property taxes and landlord's assurance costs. The lease should supply a definition of "tenant's share" or "tenant's proportionate share" based on the quadrilateral footage tenant will occupy versus the quadrilateral footage of the building. The commercial tenant must have a full insight of all these provisions prior to signing the lease.
Key provisions in the commercial lease define the events of tenant's default and landlord's remedies for tenant's default. The tenant should also address what constitutes landlord's default and tenant's remedies. Tenant default provisions are regularly defined by two categories: (1) economic defaults; and, (2) non-economic defaults. Economic default provisions deal with failure to pay rent, failure to pay for charges assessed under the lease, failure to pay taxes when due, etc. Non-economic default provisions typically refer to other provisions in the lease - use of the property, hours of operation, or failure to supply services required by tenant under the lease. It is considerable that the tenant have a full insight of (1) what constitutes an event of default; (2) tenant's right to cure, if any; and (3) landlord's remedies for tenant's default.
Assignment and subletting provisions are also foremost to the tenant. Texas law prohibits subletting without the consent of the landlord. Tex. Prop. Code §91.005 (2005). If the tenant desires to sell the business, merge with someone else business, or change the entity under which it conducts business, lease provisions with regard to assignment and subletting will come into play. Many leases supply that the tenant may assign or sublet the premises with the consent of the landlord, which consent "shall not be unreasonably withheld". Obviously, the more flexibility the tenant has in its assignment and subletting provisions, the more flexibility the tenant will have in the show the way and prospective sale of its business.
The modern commercial lease will regularly address landlord and tenant's responsibility for accidents and personal injury, casualty, damage to the building, and eminent domain. These provisions vary by jurisdiction, landlord, building, tenant, and use of the property. The tenant should spin these provisions wholly with counsel to see if they meet the tenant's risk expectations with respect to the property.
The tenant may also seek options to expand the term of the lease. The selection clause should state the estimate of options available to the tenant, the term of each option, the rent for each selection period or the method for determining rent for each selection period, and the method tenant will use to practice the option. Also, the tenant may want to include expansion possession associated with the premises, which can include a "right of first refusal", "right of first offer", or a normal expansion right granted with respect to distinct space or areas in the building or property.
In sum, the commercial lease will address, in great detail, the aspects of the association between landlord and tenant, and will vary by use, location, landlord preference, tenant bargaining power, and jurisdiction. In Texas, there are very few statutory regulations governing the landlord/tenant relationship, and most characteristics of that association will be defined by contract. There is no "standard" form of commercial lease and the provisions that can be included in the lease will be determined by the creativity of the parties and their counsel. As with any other contract, the tenant should Know What It Is Signing. The consequences of signing a "bad lease" can include unforeseen expenses and business failure.
No comments:
Post a Comment