Tag Archives: leasing

Don’t Let Your Lease Kill the Sale of Your Business

Post By : admin 3 October 2018 Leave a comment

As an asset manager, in the late 90s, working for a large owner of office buildings, I got a phone call from a guy who said he was buying one of the companies in a Dallas building we owned. He said his company planned to close on the sale the next day and he wanted the landlord to consent to the assignment of the lease to him. After checking the lease, I told him that he should have come to us much sooner because the landlord had up to 30 days to approve or reject the assignment. But that wasn’t the bad news. The bad news was that the landlord had a right of recapture – the right to terminate the lease if the tenant requested an assignment or sublease. The tenant was paying rent of only $14.50 per square foot (SF), but the market rent had increased to $20.00/SF since the lease was signed. So, you guessed it, the landlord decided to exercise its recapture right. The buyer of the business was a savvy guy and recognized that the landlord was recapturing the space, so it could lease the space for a lot more money and, thus, increase the value of the building.

He asked at what rental rate the landlord would allow the company to remain in the building. I told him $18.50. That additional $4.00/SF for the remainder of the lease term would cost an extra $60,000. He then went back to the seller of the business and gave him a choice – reduce the sales price by $60,000 or the business sale was dead. The deal went through.

What can you do to make sure your landlord doesn’t have the power to affect the sale of your business? Negotiate the assignment and sublease clause in your lease properly. Here are a few things to negotiate or consider.

1. Remove Recaputure – at the time you negotiate a lease, make sure there is no landlord right to recapture or terminate. This may be difficult if you are a small tenant in a big building.
2. Add Conditions – at the very least, limit the landlord’s right to recapture only in the case that you no longer need the space and sublease it. Prohibit recapture in the case of an assignment associated with a business sale. In some cases, you can negotiate under what conditions you can assign the lease – a related entity, an entity with higher net worth, etc.
3. Be reasonable – make sure the lease adds that the landlord’s approval “shall not be unreasonably withheld or delayed.”
4. Tenant remains fully liable even if the lease is assigned or subleased. If selling the business, you may be able to waive this liability if the landlord gets something new that it wants – more leased space or a longer lease term.
5. A transfer of stock qualifies as an assignment in most leases where the tenant is not publicly traded.
6. Explain why – it always helps when the landlord understands the reasons for something you request. Explain the structure of the transaction and why it is good for them.
7. Give notice early but avoid false alarms. Let the landlord know as soon as you have high confidence the sale will go through. But don’t go to them every time you have a tire-kicker.
8. Consent – ask for the landlord’s preferred consent form and ask about their approval process. Landlords rarely will sign a consent form created by you or your broker. Get their form and have it signed by the primary tenant and the subtenant when the sublease is signed. This will speed things up.
9. Be aware of the rights of other tenants. Some tenants may have an exclusive use clause. This means the landlord gave them the right to be the only bank, or mortgage company or whatever in the building. This is more common in retail properties but will occasionally be a factor in an office building.
10. When possible, have the acquiring company sign a new lease. To sign a new lease for the same space, the landlord must terminate the current lease. That’s usually the goal of the seller. But the landlord must be getting something it wants in return which usually means stronger credit, more space leased or longer lease term.
11. Expect Fees – most leases now give the landlord a right to charge to review a sublease or assignment. In many cases, they can charge attorney fees on top of their fees. All this is negotiable when creating a new lease though.
12. Indemnity – if the landlord doesn’t allow you to be removed from future liability, make sure your business sale documents include a buyer’s indemnity of the seller. Of course, if they can’t pay the rent, the indemnity probably isn’t worth much either.
Business sales often occur with no notice to the landlord. What happens then? This is probably a technical default on the lease and the landlord may be able to exercise its rights including terminating the lease. However, that rarely happens as long as the rent is being paid on time. I don’t advocate this approach, of course, because it’s an unresolved, outstanding risk to the business.

As always, you should seriously consider your future business goals and objectives before you sign a lease and make sure the lease document is compatible with those goals. It’s easier to negotiate these issues when the landlord is trying to get you in their building than when they already have you and you want to sell and leave.

Bob Gibbons is a Real Estate Advisor & Tenant Advocate (also known as a tenant rep) with REATA Commercial Realty, Inc. which is a tenant advisory firm based in Plano, Texas. Bob serves companies in Plano, Frisco, McKinney, Allen, Richardson, Addison, Dallas and the surrounding areas and specializes in companies which lease or buy office and warehouse properties.

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Wal-Mart – IT??

Post By : admin 5 April 2018 Leave a comment

Do you think of IT when you hear Wal-Mart? Most people don’t, but Wal-Mart has an emerging technologies office which makes sense when you consider that Amazon and other online retailers are likely taking a chunk out of its sales. Wal-Mart already has 2,000 technologists on staff in Silicon Valley, but it’s opening a new office in Plano, Texas, April 5 in a Common Desk coworking space in Granite Park.

Wal-Mart has already opened an office on the campus of the University of Texas at Dallas to provide an atmosphere for engineering students and companies to work together. Wal-Mart feels this to be a treasure trove of scoping new talent.

The purpose of these techno offices is to use technology to improve store experience. Problems can be detected earlier with these new systems Wal-Mart wishes to put in place.

To read the article in its entirety, please click here.

Bob Gibbons is a Real Estate Advisor & Tenant Advocate (also known as a tenant rep) with REATA Commercial Realty, Inc. which is a tenant advisory firm based in Plano, Texas. Bob serves companies in Plano, Frisco, McKinney, Allen, Richardson, Addison, Dallas and the surrounding areas and specializes in companies which lease or buy office and warehouse properties.

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A Ban on Dual Agency Fails…For Now

Post By : admin 16 January 2018 Leave a comment

As you probably know, at REATA, we only represent users – companies that lease or buy office and warehouse space. We won’t take landlord listings for lease because it has the potential to create conflicts of interest.

Furthermore, we don’t think that real estate companies should be allowed to represent both sides of a transaction. That would mean that one agent in BrokerageCo (made up name) shouldn’t be allowed to represent the landlord or seller while another agent in the same BrokerageCo represents the tenant or buyer.

Fortunately, some powerful forces in the industry are starting to agree with us and take action to make this mandatory.

California Assembly Bill 1059 is legislation that was crafted to end “dual agency” (it’s called “intermediary” in Texas). While the specific provision ending this practice was removed from the bill before it made it to committee, the good news is that it was considered at all. It has to be discussed a few times before it actually becomes law.

This all began in 2007 when a Hong Kong businessman sued Coldwell Banker and its agents. He had been represented by a Coldwell Banker agent as had the seller. When a giant discrepancy was found in the size of the property he purchased (long after closing), he filed suit. It went all the way to the California Supreme Court which determined that Coldwell Banker failed in its fiduciary responsibility to him. That was a lightning bolt decision.

The United Kingdom is ahead of the USA on this issue. The Royal Institution of Chartered Surveyors (think of them as the UK version of the National Association of Realtors) in early 2017 created a policy statement with strict conflict-of-interest requirements which specifically bans the practice in the UK.

So the government and industry groups appear to be moving in the right direction. It will likely take several more years, but we’re hopeful that all concerned will do the right thing for clients whether legislation requires it or not.

A more-comprehensive article is available here if you want to learn more.

Bob Gibbons is a Real Estate Advisor & Tenant Advocate with REATA Commercial Realty, Inc. which is a tenant advisory firm based in Plano, Texas. Bob serves companies in Plano, Frisco, McKinney, Allen, Richardson, Addison, Dallas and the surrounding areas and specializes in companies which lease or buy office and warehouse properties.

Categories: Uncategorized