The reasons why Commercial Landlords sometimes prefer a vacancy to reducing the Lease Costs

This is a question that has perplexed me for quite a while and I think I understand why now, it all comes down to the fact that financing is based on the value of the most current lease, so a lower lease means a lower capital value and as such possible difficulties in obtaining new.

A similar question was raised on Linkedin and you can view their discussion HERE.

5. Leasing vs. Buying

You should compare the benefits of leasing versus buying your property from ­a cash standpoint, as well as the more obvious needs standpoint, such as long term space requirements and expansion possibilities. While there are benefits to both options, for startups there appear to be more benefits to leasing than buying. Cash flow is, of course, an issue and buying takes a larger portion of your hard earned cash up front.

Here are some other monetary benefits of leasing:

  • Your credit rating will not be quite as critical for leasing as it would be for buying. So again, for startups, this might be a sticking point.
  • Your monthly lease payment is tax deductible because it’s a business expense.
  • You may be free from paying for building maintenance.

Here are some non-monetary benefits of leasing.

  • Freedom to sublet and move to another location if you find the need to.
  • No hassle of selling before you can move to another location.
  • No loss from owning a building in a bad real estate market.
  • No assignment of personnel to oversee property issues that the owner should oversee.

Buying also has its benefits. It all depends on your situation and the type of business you’re in. Here are some of the monetary benefits of buying.

  • Interest on the mortgage loan is tax deductible.
  • You can take annual depreciation deductions on your taxes.
  • In the long run, you’ll probably come out ahead because you won’t be facing increases in rent.
  • You’ll benefit financially if the real estate market is good when you sell.
  • You may be able to lease out a portion of the building if you determine that you have excess space.
  • If you need to make substantial changes to the building to accommodate your business, those changes are owned by you and not your landlord.

Non-monetary benefits of buying include:

  • You can make any changes you want to the property.
  • The hours of your business can be whatever you want them to be.
  • You are free to stay in the same location as long as you wish.

Cash Flow Analysis
If you can’t make a decision based on these pluses and minuses, you can (and probably should) do a cash flow analysis to see which option makes more sense from a cash standpoint. Before you can do this, however, you have to have all of the necessary information for making your comparison. This includes information like the full cost of purchasing, the terms of the lease, the depreciated value of the property at the time you would want to move, an estimate of the property’s value at that time, estimates of maintenance costs, and your tax rates.

To do the cash flow analysis, complete cash flow budgets (sample Cash Flow worksheet in Microsoft Excel format) that include all of the expenses you would incur for either buying or leasing over a set period of time. For the lease analysis, you’ll need to determine your net cash outlay, which is the amount you end up spending on the lease once you’ve subtracted the tax savings you receive from it. (Remember your lease payment is considered a business expense.)

In order to compare apples to apples from a cash flow standpoint, you also have to take into consideration the change in the value of today’s dollar versus a dollar five years from now. This are known as the discount factor and can be calculated using most spreadsheet applications.

You’ll also have to know the amount of your interest deduction that you will get on your business’s taxes. You can arrive at this number by multiplying the interest rate of the loan by each month’s preceding balance.

Now for the tricky part… remember above where I mentioned estimating the value of the property when you would be selling it? This is the number that will ultimately determine who wins in the battle of the benefits of buying versus leasing. Obviously the longer you stay in the building, the better off you will be because you will be gaining more and more equity. However, do you know how long you will actually be there? Do you know what the real estate market is going to do in that time period? Not unless you have a crystal ball.

So, study the current market, as well as trends and predictions for as far into the future as you can get. Keep in mind that the farther out the prediction, the less reliable it will be. Arm yourself with as much knowledge as you can, and then make your best estimate. You know your business and you should have a good idea of where it is headed. If you know you want to be in an area for the foreseen future (say 10 or more years), the market is strong, and you’ve identified a building that will suit your needs for that timeframe then go for it. Ten years of equity can be substantial. If you can get a good deal on the property (at or below market value) then it certainly makes sense to buy if you’ll be there for ten years. If you know the building is priced at or above the fair market value, or if you think five years may be more the length of time you’ll be there then think about offering to lease.

Let’s move on to the leasing process and how you can educate yourself and avoid some pitfalls.

Source: http://money.howstuffworks.com/office-space5.htm

Difference between a Licence and a Lease

Q. I have been trading from commercial premises for a year. My landlord has informed me he is going to cancel what I believed to be my lease. Since looking at the document I signed it is actually called a licence to occupy. The licence still has another year left of the term and there are no clauses in it about cancelling the licence.

My landlord posted me a letter a couple of days ago that said he was cancelling my licence and wanted me out by the end of this week. He said the reason was that I was a month behind in my rent. I am not sure what a licence is, can you tell me what the difference between a lease and a licence is? Does having a licence rather than a lease mean my landlord can cancel my licence with the letter he sent me?

A. The essential difference between a lease and a licence is that a lease grants a legal interest in the land where a licence grants merely a personal right of occupation.

Further differences between a lease and licence include:

A lease grants a legal interest in the land and the registered owner has an interest which will bind the lessor’s successors in title. A licence is a personal right that generally only binds the original licensor and original licensee.

A lessee has the legal right of exclusive possession of the land and may sue for nuisance or trespass on the land. A licensee does not have a legal right of exclusive possession and will not necessarily have the rights to take similar action.

The fact that you hold a licence of the premises rather than a lease does not alter the way in which your landlord can cancel the licence.

Sections 243 to 252 of the Property Law Act 2007 relate to cancellation of leases. Section 206 (3) of the act provides that those sections also apply to cancellation of licences (provided the licence was entered into after January 1, 2008).

Under s245 of the act a licensor can cancel a licence for non-payment of rent. However, there is a procedure the licensor must follow. This includes the licensor giving you written notice that you have breached the covenant in your licence to pay rent.

The notice must include certain elements for it to be enforceable. These elements include that the notice can only be served on you if the arrears in rent have existed for 10 days or more. The notice must also outline the amount that must be paid to remedy the breach – for instance, the amount of rent outstanding including any interest due in accordance with the licence or lease.

Further the notice must give you a timeframe of not less than 10 days (from the date the notice is served on you) to remedy the breach such as paying the outstanding amount.

Your licensor has sent you a letter which (on the information you have provided) does not fulfil the legal requirements relating to notice. Therefore your licensor cannot legally cancel your licence by merely sending you the letter in the form you describe.

It is probable that when you remain in the premises after the date he has indicated in the letter, your licensor will obtain legal advice and you will likely be served with a correct notice.

When you do receive a correct notice and that notice is served correctly on you, you will have to comply with the details in the notice in order to remain in the premises under your licence. You will have to pay the outstanding amount listed on the notice within 10 working days from the date the notice is served on you. If you do not, your licence could be cancelled.

The cancellation provisions of the act are a code and as such a lease or licence can only be cancelled in accordance with the act. The provisions cannot be contracted out of in the lease or licence document.

However, it is important you have a solicitor review your licence to check the provisions it contains.

The information contained in Commercial Property is intended to provide general information in summary form current at the time of printing. The contents do not constitute legal advice and should not be relied on as such.

Specialist advice should be sought in particular matters.

Source: http://www.nzherald.co.nz/commercial-property/news/article.cfm?c_id=28&objectid=10638813&pnum=2

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

How to find and lease office space

A useful article for those not experienced in leasing commercial property.  Written in the States but the process is the same, click HERE to read.

What is the difference between the Rent and Lease sale types?

The Rent option is normally associated with Serviced or Shared Office Space or for Storage.  Normally there is no formal contract in place even though the rental period can be long or short term

Leases involve a formal contract with negotiated terms, scheduled reviews and possibly scheduled rent increases.