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3 Things to Know When Negotiating a Commercial Lease

3 Things to Know When Signing a Commercial Lease

Today’s guest post is by Evan Tarver, a small business and investments writer for Fit Small Business, fiction author, and screenwriter with experience in finance and technology. When he isn’t busy scheming his next business idea, you’ll find Evan holed up in a coffee shop working on the next great American fiction story.

3 Things to Know When Negotiating a Commercial Lease

Commercial leases typically have longer terms than residential leases and have more tenant and landlord clauses. Whether you’re working with a broker or negotiating yourself, it’s important to fully understand a commercial lease before you sign as it can have a significant impact on the success of your business.

Below are the top 4 things you should know about commercial leases that’ll help you negotiate more favorable lease terms:

1. Your Commercial Property Parameters

Before you start negotiating your lease it’s important to fully understand your commercial property parameters. This is because the needs of your business will dictate the types of properties you can lease as well as the terms you can negotiate. Your commercial property parameters should include the following:

  • Ideal customer or employee pool (including location)
  • Commercial property zoning
  • Desired property size (rentable space and usable space)
  • Maximum monthly lease budget
  • Accessibility (foot traffic, vehicle traffic, and parking needs)

By defining each of these commercial real estate parameters, you’ll know the exact type of property you need as well as what you can and can’t negotiate. For example, if you’re a restaurant, you might be able to negotiate landlord build-outs, which are improvements made by the landlord – such as upgrading kitchen appliances – at potentially no cost to you.

2. Lease Types and their Associated Costs

Most people aren’t aware of the fact that there are typically 3 different types of commercial leases. These leases include a full-service lease, net lease, and a modified gross lease. The major differences between these 3 are the costs and fees associated with them as well as the types of businesses who typically sign them.

The Types of Leases

Understanding these different types of leases will give you greater negotiating power. For example, a full-service lease is the most common type of lease for commercial office buildings. This lease is all-inclusive, meaning that the landlord is required to pay for expenses such as utilities, property taxes, insurance and repairs out of the rent he/she receives from the tenants.

By contrast, a net lease can either be a single, double, or triple net lease and is most commonly used for restaurants and retail. Depending on the type of net lease, the tenant will be required to pay for a pro-rata share of property taxes, property insurance, and common area maintenance fees (CAMS) if it’s a multi-tenant building. If there is only a single tenant, the tenant will be responsible for those expenses.

A compromise or a hybrid between the full-service lease and the net lease is the modified gross lease. This type of lease is most commonly used for multi-tenant office buildings. Typically, the landlord is responsible for the major expenses and the tenant is responsible for their directly related expenses. For example, the landlord may pay real estate taxes and insurance and the tenant may pay janitorial and utility expenses for their specific space. The landlord usually has the right to expense pass-throughs using a base year.

Costs Associated with Your Lease

Of course, the type of lease above will largely dictate the costs associated with your monthly commercial lease payment. Still, it’s important to understand the general costs associated with a commercial lease so that you can better negotiate your terms.

The common types of monthly expenses associated with a commercial lease include:

  • Rent (based on a price per square foot)
  • Pro-rata property taxes
  • Pro-rata property insurance
  • General repairs and maintenance
  • Utilities and janitorial services
  • Tenant build-outs (improvements made by the tenant)

While these costs are dependent on the type of lease, some of the costs can potentially be negotiated with the landlord. Of course, certain costs like janitorial services and utilities can’t be negotiated unless you decide not to use the services. It’s important to remember which types of costs are typically associated with each lease type. This will help you better estimate your monthly costs as well as determine whether it’s more cost effective to buy real estate or lease the space.

3. Common Commercial Lease Terms and Clauses

When negotiating a commercial lease, it’s important to be familiar with the lease terms and clauses you might encounter. These terms and clauses will typically dictate the length of your lease, the total monthly costs, annual rent increases, lease terminations, and more. Understanding these terms will help you negotiate a more flexible and cost-effective commercial lease.

 

The key commercial lease terms that you should become familiar with include:

  • Use clause –  Determines the types of businesses that are allowed to use the commercial space. This is particularly important if you expect to sublease in the future.
  • Length of lease – Commercial lease terms typically range from 3 – 10 years.
  • Assignability – A lease is required to be assignable in order for the tenant to sublease the space. An assignable lease can be included in the potential sale of your business.
  • Escalation – Commercial leases will often have escalation clauses that let landlords increase rent annually, around 3% a year.
  • Build-out credits – These credits give the tenant the chance to make improvements at the expense of the landlord.
  • Termination clause – Clause that allows a landlord and/or a tenant to terminate a lease if certain criteria are met.

4. Benefits of Leasing vs Buying Commercial Real Estate

Ultimately, negotiating a commercial lease is only a good idea if leasing commercial real estate is more cost effective than buying a commercial space. Since each space is unique you’ll want to run a cost-benefit analysis on the difference between renting and owning the space.  

Some factors to consider when weighing the options of leasing or buying commercial real estate include:

  • Tax benefits of owning the space
  • Down payment available to purchase the space
  • Will you outgrow the space?
  • Being responsible for maintenance of the property if you own it
  • The freedom to alter the property if you own it

Bottom Line

Overall, a commercial lease can be confusing and it’s important to adequately prepare when negotiating one. In order to negotiate favorable lease terms, you’ll want to know your property parameters, lease types, potential costs, potential lease terms and clauses, as well as the benefits of leasing vs buying commercial real estate.

Impact of Tax Code Reform on 1031 Exchanges

Today’s guest post is by Wayne D’Amico, CCIM, EVP of Corporate Development & Strategic Relations with Xceligent & Past President and Chairman of the CCIM Institute. Since 1987, D’Amico has been engaged in diversified services in nearly a billion dollars of commercial and investment real estate projects in the areas of strategic and valuation consulting, transactional brokerage and creative financing to a national clientele.

 

Stumping for the preservation of Internal Revenue Code Section 1031, Like Kind Exchange rule, appears to be another attempt by rich folk looking to keep their trough over flowing at the expense of the little guy.  Will the promised Trump tax reform preserve 1031 rules or gut them to the chagrin of investors?  It’s complicated, but let’s try to break it down.

 

The Tax Code provides that the seller of real estate does not pay tax on any increase in value (gain) at the time of sale – provided, the seller invests all the sale proceeds into another property.  The tax is not avoided, but deferred until the time that the owner sells and cashes out instead of buying another property.

 

Why was Section 1031 enacted nearly 100 years ago?  Unlike buying and selling stocks, real estate transaction volume, velocity and value stimulates economic activity.  How?  Every real estate deal results in more work for a variety of jobs including appraisers, brokers, consultants, engineers, lenders, inspectors, insurers and contractors.  Greater transaction volume requires more people to perform the ancillary jobs.  And as real estate values increase, more money goes to those jobs.   The rule incentivizes owners to reinvest sale proceeds into the next deal within 180 days generating tremendous velocity in the market.  If you believe in this argument that robust real estate transaction environments are drivers of the overall economy, then legislation that supports higher sales volume and velocity ensure favorable economic stimulus.  Need stats?  In 2014, the National Association of REALTORS study suggests that some 39% of transaction volume was associated with 1031 related deals.  Eliminating the 1031 code will reduce the overall capital available to buy future properties by 25 to 40 percent due to capital gains tax and reduce the velocity with the removal of the 180-day reinvestment requirement.  If the capital pool controlled by private investors is reduced, the economy will slow and shrink.

 

Can revision of this code be a good idea?  Sure.  The real estate investor is not a species that is inherently averse to taxation.  In fact, it’s really just math.  The decision to utilize the 1031 rule is not about an aversion to taxes empirically. It is the impact of the tax expense within a financial analysis of the return to the investor on and of her money invested in the real estate as it performs over time that matters.  The amount and timing of the tax are simply variables that plug into the proforma along with many more factors that result in an overall investment return.  If the right set of comprehensive tax reforms were put together as a part of the repeal of 1031 considering amongst other things depreciation, capital gain rates, real estate tax policies, overall economic conditions and interest rates to name a few, I can envision a world without 1031.  But, until I see such a proposal in detail, I’d rather keep the 1031 rule in place and let the private sector do the heavy lifting of stimulating the economy.

REIT Risk: Bank Borrowing Rising

English: US Bank tower in Denver, Colorado. Are banks a source of REIT risk?

The real estate investment trust (REIT) is an investment vehicle with a particular sensitivity to borrowed capital. REIT risk tied to capital source is heightened because the legal structure of a REIT is centered on distributing the vast majority of its earnings to shareholders.  This means the REIT is prevented from holding back significant capital reserves, which in turn means it must borrow to finance its acquisitions and operations.  That borrowing takes the form of credit from bondholders and from banks.

Taken by itself, the REIT structure’s dependency on external capital need not present untoward risk to the REIT, but the borrowing side needs balance to protect the REIT from overexposure to a certain type of borrowing.  Between the two tradition avenues, commercial banks and bond issuance, US REITs are increasingly exposed to bank credit.

According to a new REIT risk report by investment ratings agency Fitch, US REITs have doubled their exposure to bank borrowing over the past seven years. Fitch put the borrowing from commercial banks at 8.5% of total REIT debt in 2010. That figure is now 16.5% as of year-end 2016.

Access to multiple forms of capital is a characteristic of investment-grade REITs, and a weakening in the unsecured bond markets would challenge REITs to tap additional unsecured bank borrowing. Fitch has viewed negatively companies with less mature capital structures that rely on fewer sources of funding. The inability of issuers to obtain cost-effective unsecured funding via the bond or bank market could cause rating downgrades or negative outlook changes.

Two Environmental Factors: Low Interest, High Profile

The changes come as REITs have literally come into their own as an equity investment — 2016 was the year that REITs received their own sector classification from Standard & Poor, taking them out of the wider category of “finance” and into a spotlight of their own.  That move boosted REIT stocks in the investing public’s eye at the same time that very low interest rates have prodded REITs seeking capital toward corporate bond issuance and the risk premiums that go with these bonds.

Both factors have emphasized the viability of REITs as an investment class, but the rise in one kind of vital borrowing that will be sensitive to Federal Reserve interest rate moves, which can almost go nowhere but up — is seen as a signal by Fitch that balance in borrowing sources is something REITs need more of as a class.

(Photo credit: Wikipedia)

New FASB Standards Likely To Shorten Lease Terms

For some entities’ fiscal years beginning after December 15, 2018, we can expect to see the appearance of new property lease standards as enforced by the Financial Accounting Standards Board. Commercial real estate industry lease agreements will be subject to a new accounting standard intended to force the recognition of leases that run longer than twelve months as assets or liabilities on the books.

That’s not to say the new standards exempt leases that run shorter than one year — lessees may choose to not record an asset or liability for a lease a) whose term runs less than twelve months and b) that includes no purchase option that the lessee is reasonably likely to activate.

Minimizing the impact

The landlord side of the negotiation table is likely to be faced with pressure to reduce the lease term so as to retain the flexibility afforded by lease accounting under the old standards.  Prior to the new standards, leases were not commonly characterized as assets or liabilities and as such could be arranged relative to an owner’s bottom line with much more latitude than is offered today.

A major segment of the property leasing world impacted by the standards is tenants at the crossroads considering wether to rent or buy.  As Howard Barash of CohnReznick writes in National Real Estate Investor:

Preparing for, and complying with, the new leasing standard is not all bad news. In fact, smart businesses should treat the implementation of the new standard as an opportunity to re-evaluate, and then optimize, their leasing strategies. Companies should closely examine their current leasing contracts. They should also revisit their lease vs. buy decision criteria in light of the standard to determine which option makes the most sense for their business.

The implementation deadline for the new FASB lease standard is approaching and will be here before we know it. It will impact most businesses well beyond an accounting exercise. As such, now is the time for your business to examine its leasing process and gain input from your key business leaders.

 

Embattled Wells Fargo: What’s The Commercial Lending Impact?

A mini Wells Fargo bank branch inside of a Pav...

Funding commercial mortgages with customer deposits is a central purpose for any huge bank. But when a big bank plays fast and loose with its reputation to the degree Wells Fargo has, it creates a special risk to the entire commercial lending ecosystem that should be understood.

Wells Fargo’s recent scandal is the living definition of “fast and loose”. The bank was outed as an identity thief and slapped with a $185 million fine for the fraud of signing up millions of its customers for programs without their knowledge or consent. But that’s a mere traffic ticket compared to what may be coming from market recrimination.

A recent study by consulting firm CG42 spoke to 1,000 of Wells Fargo’s customers and found, unsurprisingly, that people don’t like doing business with a bank they can’t trust. The study identified a potential loss of deposits totaling $99 billion as customers head for the door.  From the CG42 study:

Our findings show significant damage has already been inflicted on the bank’s reputation. Over 85% of consumers surveyed are aware of the scandal, and positive perceptions of the brand sunk from 60% before the scandal to 24% post-scandal. More tellingly, negative perceptions of the brand increased from 15% before the scandal to 52% post-scandal. This blow to Wells Fargo’s reputation will hamstring the bank’s ability to retain customers and attract new ones, as our study reveals.

While only 3% of Wells Fargo’s customers report being affected by the scandal, a full 30% claim they are actively exploring alternatives and 14% have already made the decision to switch banks as a result of the scandal. This represents $212B of deposits and $8B of revenues at risk. Our projections indicate Wells Fargo will lose $99B in deposits and $4B in revenues over the next 12-18 months as a direct result of the scandal, dealing a hard blow to the bank’s finances.

Consistent with findings from our past Retail Banking Vulnerability Studies, community and regional banks stand to gain the most from the fallout of the scandal, with a projected $38.7B in gained deposits and $1.6B in gained revenues over the next 12-18 months. Chase and Bank of America will also profit from the fallout, largely due to their national presence which makes them a viable alternative for customers who seek the convenience of a bank with branches across the U.S.

The chain of cause and effect goes like this: $99 billion of deposits walk out the door, depriving Wells of its least expensive capital, leading to higher capital costs for its borrowers financing new commercial mortgages.  Add to this the (unknown at press time) potential for angry commercial borrowers currently financed through the bank to re-finance and take their business elsewhere.

Is there a mass exodus of commercial customers through refinance in the cards for Wells Fargo?  Some believe not, with one Wall Street analyst referring to Wells’ customer base as “incredibly sticky”, meaning the overhead cost of changing lenders is too steep for customers.

But that perspective may fade as the scandal continues to expand from the retail side and into the commercial side of the bank’s business. Coming to light now are tales of Wells’ shabby treatment of its business customers.  In other words, Wells appears to have been just as abusive in the cultural and economic space where commercial financing lives. From Reuters:

Reuters also spoke to a former Wells employee, and a lawyer representing former employees and a former and current Wells customer, who described abusive sales practices with multiple business accounts. Jose Maldonado, a restaurant owner in Southern California who banked with Wells Fargo for 15 years, said he discovered seven accounts after enlisting the help of his accountant. He initially closed extraneous ones, and ultimately moved his remaining business to Bank of America Corp and JPMorgan Chase & Co.

“I don’t like Wells Fargo anymore. I don’t feel comfortable,” Maldonado said in an interview. “In the past, there were sometimes crazy accounts without my permission.”

Langan declined to comment on Maldonado’s accounts.

An ex-Wells Fargo business banker, who declined to be identified, said employees at his former branch were required to sell products to small business customers such as hair-salon owners and carpet cleaners in packages of three – regardless of whether they needed them.

Those typically included accounts for checking, credit card processing and payroll, and were often linked to additional savings accounts, said the former Wells banker. Bankers also tacked on business credit cards and were pressured to call a Wells insurance unit, with the customer present, to push business liability policies. 

News of Wells Fargo’s business practices isn’t done doing damage. The question is: will the commercial mortgage finance marketplace hold Wells alone responsible, or will all too-big-to-fail banks be looked at skeptically in the future?

With the expected flight to community banking, and with so many alternative financing options arriving every quarter, it wouldn’t be a surprise.

(Photo credit: Wikipedia)

Fed: Commercial Real Estate, Employment Improved

The Federal Reserve Beige Book, the eight-times-yearly published compendium of anecdotal information about current national economic conditions, has once again arrived.  This time around, the national story on commercial real estate is about modest growth, improvement and expansion. Based on information collected before October 7 of this year, the Fed states:

Home price appreciation continued at a modest pace in general, and commercial real estate activity and construction improved since the last report. Demand for business and consumer loans increased, aside from some seasonal slowing, and credit quality remained strong or improved. Agricultural conditions were mixed, as low commodity prices pressured farm revenues despite generally strong crop yields. There were signs of stabilization in the oil and natural gas sector, while reports of coal production were mixed.

[…]

Commercial real estate leasing activity generally improved, and outlooks were mostly optimistic, although contacts in a few Districts expressed concern about economic uncertainty surrounding the upcoming presidential elections. Commercial rents were flat to up, and vacancy rates were generally low and/or declined in reporting Districts, except in the Houston metro area where office vacancies increased further. Sales of commercial properties were characterized as robust in the Chicago, Minneapolis, and San Francisco Districts but softened in the greater Boston area. Commercial construction increased on net, with contacts in the Cleveland and Atlanta Districts reporting increased or high backlogs. Shortages of skilled labor remained a constraint on construction activity in some Districts, such as Cleveland and San Francisco.

On employment:

Employment expanded at a modest pace over the reporting period. Reports of hiring were strongest in the Richmond, Chicago, St. Louis, and San Francisco Districts. Layoffs in the manufacturing sector were noted in the New York, Philadelphia, Cleveland, and Richmond Districts. The Dallas District reported that energy-sector layoffs had abated, and manufacturing employment was stable following payroll reductions in recent months. Labor market conditions remained tight across most Districts. While reports of labor shortages varied across skill levels and industries, there were multiple mentions of difficulty hiring in manufacturing, hospitality, health care, truck transportation, and sales. The Richmond, Dallas, and San Francisco Districts noted a lack of construction workers with some contacts noting these shortages were constraining construction activity.

While the color beige may be popularly known as the color people use when they don’t want to use color, this report’s findings do point to our industry’s recent health — and to the green of dollars.

Fed: Foreign Lending For Commercial Real Estate Highest since 2010

English: Globe icon.

It’s an old argument, and it goes something like this: the newest federal regulations on commercial real estate lending standards in the wake of the 2008 financial crisis are too onerous for US banks to adapt to. Sarbanes-Oxley and Dodd-Frank regulatory packages taken together, the line of thinking goes, are strangling US banking and threatening efficient capital allocation by introducing piles of red tape. Too many commercial deals slow down and die waiting for capital, and it’s all thanks to these regulations, say many.

An equally old argument is its opposite:  that the culture of banking, from too-big-to-fail banks down to community banks, is terrible at self-regulation. That systemic risk in lending and repackaging is a real thing that came astonishingly close to burning down the world eight years ago. That evidence is plentiful for this side — from Wells Fargo’s recent sham-account fraud and criminality to the total fines levied on big banks breaking the $200B mark.

No matter what side you find yourself on, a fact remains: to get commercial real estate deals financed, an increasing number of players are looking beyond the regulatory footprint of the US. The winners this are foreign lenders, who are enjoying eye-popping growth over the past six years of commercial mortgage lending.

Foreign Lenders Growth in CRE Outstrips CRE Growth Rates US-Chartered Banks 

The Federal Reserve’s Financial Accounts of the United States includes a subsection called “L.220 Commercial Mortgages”.  And on line 13 of the table that illustrates that since 2010, foreign lenders have increased their amount of money lent to commercial mortgages by a little over 80%. Second quarter 2016 has this number at $55.8 billion.

Screenshot of FRB commercial mortgage numbers

Meanwhile, US-chartered institutions increased their business in commercial mortgages by 15% on a portfolio of over $1.4 trillion.  Note the two lines highlighted next to each other in the table above (click to expand).

So while the US banks lead foreign lenders by more than 30-1, the steepest commercial mortgage business growth volume by far is non-US lenders.

The Why And The What

While there’s no Fed data that puts the cause of the sharply increased foreign lending at the feet of recent regulatory attempts, that won’t stop market-ideologues from claiming that regulation is the reason.

But when they do, we have to remember that on a volume basis, under current regulation, the growth increase alone in commercial mortgage lending by US banks absolutely dwarfs the entire total foreign lending commercial mortgage market by almost 4-1.

So recent regulation is by no means fatal to commercial mortgage lending in the US. Even if we assume regulation explains the sharp rise in foreign lending, the period in question has merely eroded the huge lead US lenders have, by moving the ratio of foreign commercial mortgage lending vs US commercial mortgage lending from its 2010 level near 50-1 favoring US lenders vs. a 30-1 ratio today.

When capital markets change, it’s certainly something to keep an eye on. But rushes to judgement about cause and effect just aren’t in the Fed’s own numbers about commercial mortgage lending.

Refi Roundup: Ten Notable Refinance Deals This Month

As long as the Federal Reserve continues to hold down the cost of borrowed capital, the market to trade in old financing for better terms on commercial property remains hot. Nationally, here are ten notable refinance deals in commercial real estate. Some went to fixed-rate, some went to floating-rate, but all went to the closi one more time.

 

Fed Votes 7-3 For No Interest Rate Change

At its September meeting yesterday, the Federal Reserve Board noted one way and voted another.  The Fed voted 7-3 to leave its Federal Funds interest rate untouched at its low level, suggesting the commercial real estate national markets will not have to worry about escalating cost of capital — at least for now.

In a press release following the vote, the Fed cited a strengthening labor market plus a picking up of economic activity in the second half of the year as a justification for the vote. Inflation fears were addressed by noting the level remains under the Board’s long-run goal of 2%.

The Federal Funds Rate’s target was allowed to stand between 1/4 and 1/2 of 1%, despite the “case for a [rate] increase [strengthening]”:

Against this backdrop, the Committee decided to maintain the target range for the federal funds rate at 1/4 to 1/2 percent. The Committee judges that the case for an increase in the federal funds rate has strengthened but decided, for the time being, to wait for further evidence of continued progress toward its objectives. The stance of monetary policy remains accommodative, thereby supporting further improvement in labor market conditions and a return to 2 percent inflation.

In determining the timing and size of future adjustments to the target range for the federal funds rate, the Committee will assess realized and expected economic conditions relative to its objectives of maximum employment and 2 percent inflation. This assessment will take into account a wide range of information, including measures of labor market conditions, indicators of inflation pressures and inflation expectations, and readings on financial and international developments. In light of the current shortfall of inflation from 2 percent, the Committee will carefully monitor actual and expected progress toward its inflation goal. The Committee expects that economic conditions will evolve in a manner that will warrant only gradual increases in the federal funds rate; the federal funds rate is likely to remain, for some time, below levels that are expected to prevail in the longer run. However, the actual path of the federal funds rate will depend on the economic outlook as informed by incoming data.

Prime Rates Primed To Stay Put

The Federal Funds rate is deeply tied to the prime rates each commercial bank offers to its least risky borrowers, prime rates tracking more or less consistently at 3 percentage points above the Federal Funds rate. The next Federal Open Market Committee (FOMC) meeting where the issue of interest rates will be again considered is scheduled for November 2.

 

Fed Beige Book: Commercial RE Expands Further Across US

English: A map of the 12 districts of the Unit...

The Federal Reserve’s Beige Book, the published-six-times-yearly compendium of anecdotes from every corner of the economy, issued its newest edition yesterday.  Within, we learn the commercial real estate market, viewed from a national perspective, is showing good signs – expansion in transactions and construction plus rising rents characterize many of the Fed’s twelve districts.

Commercial real estate activity expanded further in most Districts. Construction and sales rose only slightly in Boston, Kansas City, and St. Louis but grew at a faster clip in Cleveland and Dallas. In the Atlanta District, construction activity expanded moderately, but contractors reported tight supply conditions, with construction backlogs of one to two years. Contacts in Richmond and New York noted strong growth in industrial construction, and vacancy rates for industrial space fell to 10-year lows in the latter District. Commercial leasing activity strengthened in New York, Richmond, and San Francisco, but grew at a softer pace in Philadelphia, where contacts described the market as in a “lull, not a retreat.” Vacancy rates on commercial properties increased along with completions in the Kansas City District. Commercial rents edged up in various Districts, including in Dallas and San Francisco. Contacts in several Districts cited only modest expectations for sales and construction activity moving forward, due in part to economic uncertainty surrounding the November elections.

While not a commentary on the views of Fed officials, the Beige Book nonetheless provides a handy barometer for regional and national economic activity ranging from commercial real estate to finance, consumer spending, tourism and other major areas.

Get a copy of the entire Fed Beige Book for September 7, 2016 at this link.