Tag Archives: properties

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.

Categories: Uncategorized

Another One Bites the Dust

Post By : admin 1 July 2018 Leave a comment

The Houston Chronicle reported on Friday that yet another tenant-rep-only firm has sold to a full-service firm. Jackson & Cooksey has been a commercial real estate firm solely focused on representing users (tenants & buyers) of commercial real estate since 1982. They have agreed to be purchased by Newmark Grubb Knight Frank (NGKF) with a full-service firm which has gobbled up many firms over the last several years.

Why should you care? It’s just another step in the consolidation of the commercial real estate industry. Bigger-is-better seems to be the belief. The problem is that these giant conglomerations (CBRE, Cushman & Wakefield, Colliers, JLL, Transwestern, NGKF) try to represent all sides of a transactions.

Many of them have entities which own buildings, others that finance the purchase, another that manages the buildings, another to lease the building, another to appraise the building, another to sell the building…AND yet another to represent the tenants that lease in those buildings.

Does this sound reasonable?

Law firms know that the same firm can’t represent both sides to a transaction. So what’s different about commercial real estate firms? How can they do it?

The giants will tell you that they have walls internally that protect clients and won’t allow the different divisions to share information. But I can tell you from personal experience, that’s not always true. When I was an asset manager for a large property owner, some of these giants made proposals to me to lease my buildings and offered to put a tenant rep on the team. One of those giants, was a competitor in raising capital from college endowment funds, and yet their leasing division was pitching me to lease my buildings and were offended when I suggested that might create a conflict of interest!

Bottom line: giant companies look like a good solution to giant clients because they have a single point of contact. But the more everything goes to one party, the more risk that creates and the less trust you can have that your interests are truly being protected.

If you lease or buy buildings for your company or non-profit to occupy, use an advisor that ONLY represents the user. If they represent any landlords or own any buildings, do not consider them any further.

REATA is a member of the Alliance of Tenant Representatives. To be a member of this international group of commercial real estate companies, each member must pledge to never represent landlords.

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.

Categories: Uncategorized

US Office Vacancy Lowest in 10 Years

Post By : admin 23 March 2018 Leave a comment

According to a report produced by Transwestern, office vacancies in the US as a whole are at their lowest in 10 years. That’s pretty amazing when you consider that they also report that 70.7 million square feet (SF) of new construction has been started during that same period. But office demand follows job creation so with unemployment at 4.1%, the lowest since late 2000, this makes sense.

The top 10 markets for net absorption (the net change in the total SF of office space occupied) were lead by Dallas/Fort Worth with over 5 million SF absorbed, followed by San Jose/Silicon Valley with about half that, then Settle, Northern Virginia, Austin, Phoenix, Detroit, Las Vegas, St. Louis and Baltimore.

Notwithstanding the top absorption markets, the top 10 markets for rent growth looked different: Boston at 15%, followed by San Francisco, Charlotte, Orlando, Raleigh/Durham, Oklahoma City, East Bay/Oakland, Phoenix, Los Angeles and Portland. Some of those intuitively make sense because they are land-constrained cities with a huge tech presence. Others were a surprise.

The cities with the most new space under construction are New York with over 16 million SF underway, Dallas/Fort Worth with over 8 million SF coming, Washington, DC at 7.6 million SF, San Francisco at 6 million SF, and Denver at 5 million SF.

The future looks bright for the national office market so long as jobs hold up. If there is a downturn in the economy and companies stop hiring and start laying workers off, things will change.

For the rest of the report, 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.

Categories: Uncategorized