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What Do I Need to Know Before Signing a Commercial Real Estate Lease?

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Question: What Do I Need to Know Before Signing a Commercial Real Estate Lease?
Attorney Susan Dawson has a practice which includes commercial real estate. She agreed to provide her "top ten" tips
Answer:

So you've selected your location, negotiated your rent and are ready to sign that lease. Before you do, here's what you should know:

1. Read it. Yes, you do need to read it. I know, it's a very long (and face it, not very interesting) document, but you do need to know what it is in it. Check the terms. Do not assume they got it right. Make sure you check the start date, end date, rent, rent escalation and any other special terms you negotiated for. Also, be sure you know what you are obligated to do? What is the landlord obligated to do? Can you terminate it? Make sure you know what you are getting into.

2. Negotiate. Just because they gave you a lease, does not mean your negotiation is over. Many of the terms in the lease are still negotiable. When you're reading it, make a list of all the provisions you don't like and send it to your landlord. You may be surprised by how much they are willing to change.

3. Get your business legal structure in place before you sign. If you want to be protected by that corporate shell, make sure it's in place first. Be sure you have your filed Articles of Incorporation or Organization (some states call these documents Certificates) back from the Secretary of State before you sign. Remember filing through the mail is usually the least expensive route, but it takes significantly more time, in some states up to 30 days. Give yourself enough time to get those Articles filed.

4. Know the leasing terminology. For example, most leases use the term "CAM" which stands for "Common Area Maintenance". You should be allocated a percentage of the CAM you are responsible for based on the percentage of the building you are renting. Be sure the percentage is based upon the size of the building and does not vary based on how much of the building is rented.

5. Consider asking for a CAM Stop lease. Most leases these days are "triple net" (meaning you pay rent, plus your proportionate share of CAM and property taxes for the property. A "gross lease" has these amounts included in your rental rate). You can ask the landlord for a CAM Stop lease, meaning that you only pay for the increase in CAM and Taxes above your initial lease year (frequently called the "base year"). While the landlord may increase your base rental rate, it takes a lot of the "mystery fee" out of the rent. Alternatively, ask for a cap on the CAM so it cannot increase by more than a certain negotiated percent.

6. Read the CAM definition. This is probably one of the most confusing sections of the lease and you will be surprised by how much you are paying for. Check to make sure you are not paying for things that relate to the Landlord's marketing efforts or legal fees associated with negotiating other leases. Other things you may want to strike is any administration fees of more than 3%, paying for benefits for the Landlord's employees, build-out costs for other lease units.

7. Understand your responsibility for capital expenditures. "Capital Expenditures" when used in a commercial lease typically refers to major structural expenditures, i.e. roof, foundation, HVAC and other major repairs/replacements. What is "standard" is different from town to town and property to property, but I typically advise clients against signing any lease that shifts the burden of these repair or replacement costs to the tenant. If your landlord is requiring you pay for these costs, there are compromises. For example, if the lease says you are responsible for HVAC repair and replacement, suggest to the landlord that he strike "replacement" and that your repair obligation be limited to a maintenance contract, maybe two times per year, and that you be responsible for all general repairs up to a certain annual maximum amount.

8. Is the lease assignable? Check to see if the landlord has the right to terminate the lease in the event you ask for an assignment. For many businesses, your location is a big piece of the its value. If you accept an offer to buy your business, you would need to assign the lease to the new owner. If the landlord has the right to terminate the lease once you ask for an assignment, that could kill your sale. Ask the landlord to remove this provision or allow it be modified so it does not apply in the event of a sale of your business. Understand that the landlord will still want the right to reject the assignment if the new tenant is not financially acceptable.

9. Plan to provide a guaranty. If you can get away with signing a lease with no guaranty, you are extremely lucky. Most landlords these days will not sign unless you personally guaranty the lease. But guarantees are negotiable. Consider providing a guaranty for only a portion of the lease term, say half. Or negotiate for a guaranty that lasts only 6 to 12 months after you terminate rather than the remainder of the lease term.

10. Be realistic. If your lease constitutes 3% of a larger property, the landlord will be much more unlikely to negotiate with you than if your space is 25% or more. To truly understand what items are important to negotiate, consider hiring a lawyer to review the document and help you with the negotiations. Your lease may seem incredibly one sided and burdensome, but there are some very good reasons for many of those provisions and an attorney can help you decide when to cut and run and when the risk is worth it.

Disclaimer: Susan Dawson's comments, and the content of this article and GuideSite, are for general information only and are not intended to be legal or tax advice. Each business entity has specific situations which should be discussed with your own legal or tax advisor.

Susan Dawson has devoted her career to representing businesses, business owners, and entrepreneurs. She prides herself in providing unparalleled service to her clients, quickly responding to and addressing their needs while using her extensive experience to advise clients on the best course of action for their businesses. She concentrates her practice in the areas of Business/Corporate Law, Employment Law and Commercial Real Estate/Leasing. Waltz, Palmer & Dawson LLC (www.wpdlegal.com) was founded in 2008, creating one of the only entirely women owned law firms in the Chicagoland area. The firm uses its unique perspective to provide unparalleled legal services to its clients.

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