Wednesday, May 30, 2012

10 Clauses To Consider When Reviewing A Lease

Commercial leases can be extremely complex, but by analyzing certain common clauses, potential tenants can ensure a favorable lease for their organization. Here are 10 key components to evaluate when reviewing a lease.

1) Base rent clauses

Rental rates, the focus of most negotiations, represent the most direct monetary aspect of a lease. Tenants can negotiate for periods of free rent even when a landlord refuses to lower the basic monthly rent which can greatly reduce the average rent rates over a lease term.

2) Space measurement clauses

Your rental rate is also based on the size of your office space, but this measurement depends on treatment of common areas, lobbies and mechanical rooms, to name a few. Useable square feet, what you occupy, must be distinguished from rentable square feet, what you pay.

3) Renewal clauses

Before you move in, you must determine whether you will be able to stay. A renewal clause will ensure you can remain, based on a percentage of fair market value (90 to 100 percent) when your lease expires.

4) Sublease clauses

Often, subletting your space can turn you into a competitor with your landlord. Tenants should avoid agreeing to onerous provisions designed to limit this option. Examples of these limitations include restrictions on subleasing to neighboring tenants and owing the landlord 100 percent of any realized profits.

5) Operating expense clauses

In operating expense clauses, the landlord passes on his cost increases after a tenant first leases the space. They can significantly affect costs, especially for larger tenants, and should be examined closely.

6) Alteration clauses

Tenants should reserve the right to improve their space without an obligation to remove any infrastructure added upon termination of the lease. By doing so, they avoid an unknown liability at the end of the term. These clauses should also provide an equitable way to hire construction crews based on the tenant's choice, even when they are initially suggested by the landlord.

7) Default clauses

In addition to their use in times of financial distress, these clauses can also define certain infractions as tantamount to default. Tenants should examine the conditions carefully and include a suitable method as a remedy to avoid termination.

8) Relocation clauses

The landlord sometimes includes a right to relocate you to another space in the same building, perhaps to make room for a larger tenant. If you must accept this condition, at least make sure any resulting costs will be paid -- such as moving costs, IT/phone cabling and installation, renovation of the new space, stationery, etc. -- and ensure the new space will offer the same functionality, quality and access.

9) Personal guaranty clauses

Landlords may require a personal guaranty clause for payment protection if they are unsatisfied with a tenant's credit. The tenant should ensure the individual signer is protected and off the hook if the organization vacates the premises promptly in case of default (known as a Good Guy Guaranty).

10) Surrender clause

A landlord generally includes this component to ensure the space is returned in a rentable condition. Allowances should be made for normal wear and tear during the course of the lease.

The above list provides a very elementary outline of some typical clauses in commercial real estate office leases. However, the tenant should enlist professional representation during any negotiation such as a real estate lawyer and commercial real estate broker as well as an established architect.

Tenants may also consider renegotiating their lease before its expiration. It is often possible to achieve more favorable terms through revision of the above clauses.
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