Negotiating a Commercial Property Lease

The first thing to realise when you are about to enter into a lease for a commercial property is that there is no such thing as a standard contract.

I get concerned that many individuals and organisations believe that commercial property leases are standard [they are not] and that any “standard” variations are simply the preserve of the landlord [they are not].

It is easy to think this is the case when you are presented with a formal document. Now don’t get me wrong – there are carefully worked out legal components to a lease agreement as laid out by professional bodies such as the Auckland District Law Society.

But it is important to realise that there is a lot more that is negotiable in a commercial property agreement than simply the length of the lease and the net rental.

So here are some tips to consider when entering into a commercial property agreement before you put ink to paper…

  1. Parties. It is important to establish clearly who the contract is between. Is the landlord named in the contract the owner of the building, a head tenant who  is sub-leasing some of their space, or perhaps individuals trading as an entity?
    It sounds simple, but clearly establishing who the parties are is critical, as is getting clear about who will act as guarantor for the lease. From my experience, the guarantee is always the subject of some debate when negotiating a commercial property lease agreement.
  2. Lease Term. Carefully consider how long you want to lease the space for and recognise that – much as when you buy a house or get married – you are entering into an agreement for better or for worse. You are locking yourself into something that can change your life.
  3. Right of Renewal. When you are considering the right term for you, it is also important to be aware that you can negotiate a right-of-renewal at the end of the term. If you negotiate this correctly, it is not simply an option – it is a right, as long as you have not breached any terms and conditions in the lease.
  4. Important Dates. It’s not just the lease term and right of renewal date that’s negotiable either. The timing of rent reviews is also negotiable. There is no standard or legal requirement to have rent review dates fall on a specific date defined by the landlord.
  5. Total Occupancy Cost. A trap for young players is to fixate on the net rental but blindly accept the operating costs. There are always operating costs to take into account… and negotiate! Examples are such things as car parking, landscaping, cleaning, power, security and other associated costs.
    You need to know the total occupancy cost. It is very easy psychologically to think, “Oh, my rent is $6,500 a month”, when really by the time the other occupancy costs are factored in, your outgoings on leasing the space are $7,500 a month.
    You should also note that changes in these additional occupancy costs (operating expenses, or opex) are not limited to rent review dates. They can go up and down on an annual basis.
    At Parallel Directions we think tenants should only pay a fair share of these operating expenses. It’s such an important factor that we offer a specific product, an Opex Audit, in order to gain a very clear handle on these operating expenses and where there is room for negotiation.
  6. District Plan. Before signing on the dotted line of a commercial lease agreement, make sure there are no restrictions on operating your business at the premises you are about to lease. You need to know the District Plan’s zoning for the premises and whether there is any resource consent required or bylaw that might inhibit you operating your business.

If in doubt, you know who to call!

Source:  http://www.officeblog.co.nz/negotiating-a-commercial-property-lease-agreement

Hospitality landlords urged to help tenants

Hospitality landlords urged to help tenants
By GREG INNESS – Sunday Star Times Last updated 05:00 21/03/2010

Landlords in the hospitality sector are under pressure to drop rents or risk being left with vacant buildings.
It is a common arrangement in the hospitality sector, which includes pubs, hotels, motels, cafes and restaurants, for an investor to own the premises, and lease them to an operator who runs the business for a fixed term.
Often the investor who owns the premises is also a former operator of the business, who previously owned the whole package on a freehold going concern basis, but later sold the business with a lease in place, perhaps to retire, and kept the premises as an investment.
However, it is also common for business operators to sell before their lease has expired. That lease will then continue to the end of its term with the new owners and can then be renegotiated.
But tough times in the sector have forced a significant drop in the value of leasehold businesses for sale.
The hospitality business is notoriously fickle and “under new management” signs are a common feature of the industry.
With banks generally more conservative in the current economic climate, they are being cautious when assessing funding applications from people wanting to buy leasehold businesses such as pubs, motels and restaurants.
Peter Harris, a broker with Bayleys Real Estate who specialises in South Island hospitality businesses, said banks would generally fund up to only 50% of the price of a leasehold business, meaning the purchasers would have to provide the rest as equity. Even then, the banks would take a close look at the borrower’s track record in the sector and the risks associated with the business they were wanting to buy, with a particular emphasis on its cash flow.
Difficulties raising finance had seen prices tumble for leasehold businesses, in some cases leading to bargains.
“A [leasehold] business I might have sold two years ago for $300,000, you might be able to buy now for $225,000,” Harris said, a decline of 25%.
However, a bargain was usually a bargain for a reason, and that often had as much to do with the fact that the business was struggling as with any difficulties raising finance.
Country pubs were struggling.
“I think it’s just because of new attitudes now to drinking and driving,” Harris said. “People are taking a more responsible attitude and are tending to take their liquor home because they can’t afford to get caught drinking and driving.”
Lack of patronage at some traditional pubs had forced owners to look for new uses for their properties, such as conversion to a backpackers hostel and turning much of the bar area into a cafe. But with an oversupply of such accommodation in the industry, the market for such properties had “certainly softened,” Harris said.
The businesses that were performing best were those on the tourist trail which were able to attract a mix of local patrons and visitors.
Hospitality Association of NZ chief executive Bruce Robertson points the finger at unrealistic landlords for the problems many businesses are facing.
“I think what is at the heart of this issue is that some of the landlords have not recognised that they are still charging too high a rent for the profits a business can generate,” he said. “So we’ve got rents that are too high and too many landlords haven’t been willing to recognise that they are better to have a tenant on a lower return than have an empty building.”
Robertson said it was common for business operators who were struggling to ask landlords to drop their rent, only to have the request refused. As their debts piled up, operators were forced to walk away from the business and the landlord would be unable to find new operators to take over the lease.
Faced with the option of dropping the rent or have an empty building, landlords would often step in and take over running the business themselves. “We are seeing some of them having to come back in and run the business because they have no choice,” Robertson said.
Often that meant coming out of retirement to work in an industry they had not had an active involvement in for many years and which had changed considerably. So they were not necessarily any more successful at running the business than the tenants they replaced.
“If the landlords are more realistic [about rent], they’ll be better off in the longer term,” Robertson said.
Many landlords also failed to keep investing money in their premises to keep it up to date. Often this meant adding or improving dining and entertainment facilities. “The ones that are struggling are the ones that have had little investment and the landlord may not have put any money back into the property, so they are sort of locked into that 1970s-style and aren’t meeting today’s needs,” Robertson said.
“But if it is, say, a country pub that has had that investment, so it meets the needs of the wider community and is somewhere you’d take your family for a birthday dinner or where mums meet up for coffee after dropping the kids at school, then they are doing pretty well. But to get to that point they’ve had to have investment in facilities.”
Ironically, difficulties with many leasehold arrangements had increased interest from buyers looking to acquire a business and its premises.
“It’s become clear, the preference is for buyers to look for freehold going concerns,” Harris said.
These were either people who had already been involved in the industry but were currently cashed up, or new entrants to the industry.
Harris said he took a call from a couple last week who had both lost their jobs and were looking to buy a hospitality business, something that was increasingly common.
Many businesses such as pubs or motels often had owners’ accommodation attached, so buyers could sell their existing home, use the equity from that and any other savings to help fund the purchase, and then live on the premises with the business providing an ongoing income.
However, whether operators have leasehold arrangements or own their premises, the operating environment is still difficult.
“Tourism numbers are holding well, particularly out of Australia, but we’ve still got a fair degree of [spare] capacity, in beds, bars, restaurants and cafes, which means New Zealanders and our visitors are pretty well spoilt,” said Robertson. “The industry is pretty competitive and people have struggled with yields.
“We may be out of recession but I don’t think New Zealanders have really opened their cheque books yet. They are still careful with their discretionary spend, so there’s still that lag effect across the hospitality sector.”

http://www.stuff.co.nz/business/3481…o-help-tenants

Sublessee's options if Headlease is cancelled

Q. I operate a small family business from a shop I sublease from another company. That company leases the shop from the owner.
I have recently heard rumours the company has not been paying rent to the owner. Can the owner cancel the lease with the company at any time? If it does cancel the lease, does that bring my sublease to an end?

I am concerned as this would be devastating for my business. I have heard if the term of my sublease with the company is longer than the term of the company’s lease with the owner, I can argue there has been an assignment of company’s lease to me. What are my options here?

A. In this answer we will refer to the lease between the company and the owner of the property as the headlease. If the company has not been paying rent to the owner of the shop then you are right to worry. The owner has the right to cancel the headlease due to the non-payment of the rent. Any valid cancellation of the headlease would bring your sublease to an end as your sublease only exists by virtue of the headlease.
However, the owner can only cancel the headlease if it complies with certain notice provisions. For instance, the rent must be in arrears for 10 working days before the owner can issue a notice of intention to cancel the lease.

The owner must also give the company no less than 10 working days after service of the first notice to pay the arrears in rent.


This assumes there have been no other breaches of the lease. Most importantly to you is the owner must serve the notice or a copy of the notice on you, the sublessee, if your name and address is known to the owner. This will give you notice of the owner’s intention to cancel the lease. You are correct in relation to a sublease being treated as an assignment in some circumstances. If the term of your sublease exceeds the term of the headlease then, whether it operates as an assignment depends on whether the sublease was entered into prior to or after January 1, 2008. This is when the Property Law Act 2007 came into force. Assuming your sublease was entered into after that date, your sublease will not operate as an assignment unless the document itself says otherwise. Instead, the term of your sublease will be reduced to expire at the same time as the headlease.

However, if your sublease was entered into prior to January 1, 2008 then the sublease will operate as an assignment. As the assignee, you will become the direct tenant of the owner and this would allow you to take steps to remedy the breach of the headlease and prevent cancellation of the lease.

Your other option as sublessee is to apply to the court for relief under section 258 of the act. This section only applies where the headlease has been validly cancelled. You can only apply under the section if the headlease has not been reinstated by a successful application by the company and if no more than three months has lapsed after the date on which the owner re-entered the shop.

By making this application, you would basically be asking the court to order the owner to enter into a lease directly with you. This would put you in the position of the tenant of the headlease for the remainder of your sublease term. Any new lease term would begin on a date no later than the date on which the cancellation of the lease took effect. It would expire no later than the date on which the original sublease would have expired. But what must be remembered is the courts have a wide discretion when determining whether to grant a sublessee relief and many factors will be considered before any form of relief is granted.

Source: http://www.nzherald.co.nz/commercial-property/news/article.cfm?c_id=28&objectid=10634491

Research on Seismic Retrofit Implementations in NZ

The University of Auckland would appreciate you taking part in a an online survey on the above named research topic. It is an opportunity to contribute to the findings that could effect changes on issues and problems relating to the seismic retrofit implementation in New Zealand. This study will benefit your organisation as it aims to propose incentives appropriate to seismic retrofit implementation in New Zealand and ensuring the safety of communities that are susceptible to earthquakes in New Zealand.

This research is funded by Foundation for Research, Science and Technology, to produce a quantitative tool that will demonstrate the economic, social and environmental benefits of seismic retrofit implementation, aid decision-making processes when assessing various degrees of retrofit intervention and devise plans and strategies for dealing with earthquake prone buildings. The knowledge developed from the study will provide useful information to all stakeholders involved in retrofits decision.

Your contribution and participation is highly valuable to this research as you have been considered as one of the significant stakeholder’s seismic retrofit decisions.

To participate in the survey click on this link: http://www.surveymonkey.com/s/75GJGP8

Thank you for your time and providing valuable feedback.

If you would like further information regarding the on-going research, please do not hesitate to contact Egbelakin Temitope – tegb001@ec.auckland.ac.nz or visit www.retrofitsolutions.org.nz.

Bayles acquires Christchurch commercial real estate business

Christchurch commercial real estate company – Cantcomm has been taken over by Bayleys.

Founded by Harry Von Tongeren 15 years ago who now assumes the position of Commercial Sales Manager for the merged company.  The company will initially have a staff of 19, though this is expected to grow to 25 in the coming months.

Commercial Property NZ – Issue 57

The following items are the main topics covered Issue 57 of the Commercial Property New Zealand issued by Peter Hamling of Sigma Group Partnership.  The newsletter is supplied on a subscription only basis.  You can contact Peter on 09 436-1564.

Informed news and commentary for property professionals

  • Are darker days lightening up?
  • Auckland region awash with vacant Industrial space
  • Vacant industrial properties bring pressure on rentals
  • A view on the construction sector
  • People in business
  • Commercial property deals
  • Industry events

What happens when big corporations vacate old premises?

Reprinted from Parallel Directions.  View the original post HERE!

One of the key impacts on the currently flooded commercial property market is the number of large corporate tenants moving to new buildings.

In Auckland, there’s a growing list of large banks, insurance companies, management consultants and engineering firms moving to bigger, better, brighter and greener premises.

Banking
The ANZ, ASB and Westpac banks have, or soon will, move to highly rated green-star buildings around Auckland’s up and coming waterfront precinct.

Insurance
Likewise, ING and IAG in the insurance industry have moved downtown, and on the North Shore we’ve seen Sovereign move from Takapuna’s retail strip to a state-of-the-art building in the Smales Farm technology office park.

Telecom
Telecom is moving from several buildings around central Auckland to one large complex overlooking Victoria Park.

Others heading towards the cooler environs of downtown include the large engineering practice SKM, which has relocated to the new office park built over the ex-rugby league grounds at Carlaw Park.

When the boom was booming loudest
I am often asked why these large organisations are moving when the global economy is still in turmoil. Simply, the decisions to move were made several years ago when the boom was booming loudest.

I was told last week by an executive of one of these organisations that if they had to make the same decision today, they wouldn’t be moving.

Anatomy of oversupply
These large corporations leave a large gap behind them when they move to new premises. But at the same time, as anchor tenants in new buildings, they don’t fill every floor of the new complex.

So we have vacancies in the new buildings they move to, and bigger vacancies in the buildings they vacate. The result is an inevitable oversupply.

Pitfalls
While tenants seeking new commercial space may appear to be spoilt for choice, there are some pitfalls for those taking up space in the buildings recently vacated by the large corporates.

For a start, prospective tenants will most often be smaller operations than the large banks, insurance companies and consultancies. As they require a smaller area than the bigger companies, they don’t hold quite so many bargaining chips.

Likewise, they don’t have the grunt of well-organised and practiced property departments behind them like the larger firms.

Tough landlords
It is critically important to have the support of professional advice because the professional landlords are tough negotiators used to dealing with tough opposition from the bigger firms.

Tough negotiators
It’s an area that we at Parallel Directions specialise in, so don’t hesitate to give us a call if you are considering taking up space in one of the vacated buildings.

Beware of impending landlord wars…..

Reprinted from Parallel Directions. See original post HERE!

I’m predicting the commercial tenancy market is about to become a bloody battlefield as times get really tough for investors and landlords managing commercial property portfolios.

There are five key factors that will cause this warring between landlords.

  1. High Vacancy Rates. On 3 November I reported that vacancy rates were over 15 percent and could go higher in 2010. At that stage the real estate industry was still in denial and reporting a rosier picture. But latest research shows vacancy levels, particularly for office space, running at highs not seen since the early 1990s. There is now acceptance that vacancy rates could hit 16 to 18 percent.
  2. Increasing Supply. Add the new office space coming on stream over the next two years to the high vacancy rate and you have one almighty glut. Auckland has 75,000 square metres due to come on stream in the next two years, and Wellington has 90,000 square metres!
  3. Legislation. The third factor that has landlords squirming is Government’s indication this year’s budget will do away with depreciation provisions for tax on rental property, plus the possibility of a land tax.
  4. Low Demand. Demand is still dropping. Many businesses continue to shrink, very few new start-ups are underway, and more and more businesses are looking at ways to cut costs by using less space and having people work remotely.
  5. Falling Rentals. Commercial rentals are falling by 15 to 20 percent in Category-A buildings. This is an indicator that rents are on the way down in all categories.

If we delve into what’s happening, we can see that new space coming on stream is all largely committed to new tenancies. But vacancy levels will soar as these tenants vacate older premises to move into the new buildings.

I predict the commercial lease market will turn in on itself and we will see landlords poaching each others tenants as they vie to keep their buildings occupied.

While this buyers’ market might seem to benefit commercial tenants, these are very dangerous times and you must act cautiously and with expert advice.

Landlords can easily sugarcoat deals to make them appear more appealing to tenants. And commercial real estate agents working on commission will continue to con tenants into believing there is a set price and terms & conditions for rental space.

It takes shrewd advocacy on behalf of tenants to ensure good deals are negotiated and achieved as landlords and commercial real estate agencies go into “convince at all costs” mode in a desperate attempt to keep buildings fully occupied.