Recently,
we represented a tenant in a successful lease transaction. Provided by the new
location are ample space and amenities for years to come. This address is one
of four occupied by the company. We’ve now been approached - by the client - to
review their other three buildings. You see, an acquisition of a competitor is
in the works. Thus, there could be a redundancy of capacity very shortly. Our
counsel to them was column worthy. So, we mashed up an old column on the
subject along with an update on the new information. So, if you find yourself
in any of the following scenarios - consider your alternatives:
Your
company was just purchased and the operation will be rolled into another
location - check!
Or,
you've out stripped the capacity of your facilities but you have time remaining
on an existing lease - check!
Or,
you have decided to shutter the operation, and outsource the manufacturing to
Texas - but your lease expires a year from now - check!
Or,
you decide to take advantage of historically low interest rates and buy a
building but there is that landlord who wants to receive her rent for the next
two years - check!
ALL
of these situations and more can cause the need for a lease termination. But, just
how do you accomplish this?
First,
ask yourself these questions:
How much time remains on your lease? If the term
remaining on your lease is less than two years, be prepared for your owner to
use your remaining term as a "free" marketing time. The owner has the
luxury of rent payments while searching for a replacement tenant or buyer.
What type of entity owns your location? A private
individual may be a bit more flexible than an institutional owner such as a
pension fund advisor or a REIT.
Where is your rental rate in relation to the current market? If your rate
is above market, plan on subsidizing payments on the remaining term - if a
replacement tenant can be found. If your rate is below market, your
remaining term could provide a good alternative for a fast growing company
concerned about a long term lease.
How does your lease treat assignment or subleasing? Most
commercial leases allow for subleasing or assignment. Rarely is there a removal
of your obligation, however. This means that if you sublease or assign the
remaining term, you may still be liable for the payment of rent if the sub
tenant defaults.
If your are moving to a bigger space, what is the rent
amount monthly? If you are doubling or tripling in size, one month of rent
in the old building could be a fraction of the monthly rent in the new
location. IE: Old rent is $5000 per month. New rent is $15,000 per month. There
are nine months of term remaining in the old digs or $45,000. If you negotiate
three months of rent abatement in the new unit, you avoid a double payment.
How long would your building take to lease? Any
competent commercial real estate broker can answer this for you. The answer to
this question will have bearing upon a lease buyout.
Can some portion of the operation stay through the term? I just sold
a building to a company with 15 months remaining on a lease term. Rather than
try to sublease the space or negotiate a buyout, my client elected to open
another related operation in the space.
Are any of your neighbors crowded and in need of square
footage?
A fast growing neighbor can consume your space with a moment's notice - AND
thank you!
Once
these answers are clearly understood, you have some options:
Negotiate a buyout: I generally will suggest that an
occupant call his owner and discuss the reason that the space is no longer
needed. I suggest that the occupant ask the owner if she would consider a
buyout of the remaining term and if so, for how much? Depending upon an up trending
or down trending market, the owner response will vary. Assuming 12 to 18 months
of term remain, an owner will generally compute the marketing time to find a
new tenant, lease concessions (free rent and improvements), brokerage fees, and
the variance of the current rental rate to market. All of these factors form
the basis of a buyout offer.
Sublease or assign the space: If more than
two years remain on your lease, unless you are dramatically below market, most
owners will not consider a buyout of the remaining obligation. You then must
find a replacement tenant to live out the remainder of your lease term. You can
either do this yourself, hire a commercial real estate professional, or ask the
owner to do it.
Cease payment: I have NEVER recommended this but
it is an alternative.
Live out the term: In the example above, my client
loved the old location so he created a business operation to house the space
and live out the remaining term.
Allen C. Buchanan,
SIOR, is a principal with Lee
& Associates Commercial Real Estate Services in Orange. He can be reached
at abuchanan@lee-associates.com or 714.564.7104. His website is allencbuchanan.blogspot.com.
