Call a Tenant’s Bluff

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In this article, I will explain and apply commercial real estate concepts; using a real-world situation. Through this example, I will demonstrate the critical importance of working with an experienced, commercial real estate broker (especially) when negotiating the terms of a lease agreement. There are many considerations beyond basic economics that impact and govern the tenant/landlord relationship. If your lease is less than 20 pages, you’re doing it wrong (unless you like paying attorneys’ fees). There’s a saying that goes something like, “if it were not for attorneys, the world would not need attorneys.” A simple lease is a weak lease. An agreement that dictates the relationship between two unrelated parties for a period of multiple years benefits neither party if the terms are left ambiguous and open to interpretation. Ambiguity only benefits attorneys because they charge by the hour. By working with a commercial real estate broker (not agent) and particularly a CCIM, you will have access to market data and deal-structuring expertise that will allow you to negotiate effectively and “Call a Tenant’s Bluff.”

In this scenario, my client is the owner of a commercial property that is currently leased to a tenant with less than 6 months left on a 3-year lease. The tenant has a 5-year renewal option at the then market rate; however, it is capped at 106% of the rent in the final year of the lease term. The owner would like to sell the property and will likely realize a higher sales price if it were sold as an investment property (leased) versus vacant. My client sent me the following (paraphrased) message relating a conversation with the existing tenant:

I spoke with the tenant and they are on the fence and are weighing the decision to 1) stay in place and purchase the building, themselves; 2) renew the lease, but for 3 years not 5 years; or 3) move to another building in the same submarket at a far lower rate with 6 months of free rent and a moving & tenant improvement allowance. The tenant suggested I meet with their broker to discuss terms.

My response:

I would like to address the points we discussed over the phone and included in your email and will send a separate email with my recommendation moving forward.

Tenant weighing decision to stay in place and purchase the building

Most renewal options include a timeframe, expressed in months from the lease termination date, by which the tenant must notify the landlord of its intention to renew. Unfortunately, your lease with the existing tenant does not, which allows them to weigh their decision and keep you in limbo. If they are weighing their decision to stay, I would not put much “weight” in their claim that they are considering purchasing the building. If they truly wanted to stay then buying the building would make sense; however, it should be at the market price for the property as the cost of ownership would significantly decrease their costs of occupancy.

Renew for 3 years (not 5 years)

I would not recommend agreeing to anything less than a 5-year lease. When discounting cash flows, investors must apply a cap rate plus a risk premium to the income stream to ascertain its value. Sales data can be used to determine the market rate for a particular asset type, class, etc. but, at the end of the day, the cap rate is a reflection of what each individual investor is willing to pay for each dollar of net operating income. Because there are multiple years of income the investor must also apply a risk premium to the cap rate to account for the potential loss of that income. Discount rates consider a number of risk factors, including but not limited to: length of lease term, single tenant vs. multi-tenant, size of space, cost of reletting space, difficulty in reletting the space, etc. Based on the fact that our property is a 10,000 SF (actual square footage redacted for confidentiality), single-tenant space, most investors would place a significant risk premium on a 3-year lease from an existing tenant because it strongly indicates that they do not intend to stay long-term. Below is a (relatively) hypothetical example of how the risk associated with a 3-year lease could impact the sales price.

5-Year Lease

  • 10,000 SF x $12.00/NNN = $120,000/year net operating income
  • $120,000/year ÷ 6.5% (hypothetical market cap rate) = $1,846,153.85 Sales Price

3-Year Lease (with added risk premium)

  • 10,000 SF x $12.00/NNN = $120,000/year net operating income
  • $120,000/year ÷ 7% (discount rate) = $1,714,285.71 Sales Price

As you can see, a 3-year lease has the potential to lower the investment value of your property by over $131,868.14.

Tenant moving to another building in the same submarket at a far lower rate with 6 months of free rent and a moving & tenant improvement allowance

I would recommend asking for the address of this supposed location. There are so many contradictions within this assertion that I almost don’t know where to start.

Far lower rate

I ran a search for flex spaces in our submarket from 7,500-12,500 SF and have attached a report showing the available options. In addition, I’ve attached an analytics report on all flex properties within our submarket; showing the average market rent to be $13.46/SF ($12.74/SF for available space). The maximum rent we can charge the existing tenant based on our current lease is $12.50/NNN. If they are looking at another submarket then it’s not “nearby” and is not comparable. If they’re looking at straight warehouse/industrial space they can expect to pay a lower rent but not “far lower.” In addition, if the rent is “far lower” that would be because the space is not built out; meaning there is no (significant) showroom/office portion of the space. If there was the landlord would adjust their rental rate accordingly. I originally used a square footage range of 7,500-12,500 SF but after expanding it to 15,000 SF, identified one property to which they may be referring. The space is 14,419 SF (over 30% larger than our space) and they are asking $9.32/NNN. The space is 60% office and has 3 docks. I spoke with the listing broker and they have not seen demand for that much office and are thus pricing it closer to a straight industrial property. For a tenant with good credit that is willing to sign a 5 to 7-year deal they would be in the $7-$10/SF range in terms of a tenant improvement allowance. At their asking rate the annual rent would be $134,385.08 ($14,385.08 more per year than our property at $12.00/NNN).

6 months free

This amount of rental abatement is not market for industrial spaces. Because flex space is a combination of office and warehouse a tenant may expect a slight increase in the number of months of rental abatement but that would be based on the length of the lease term, proportion of office to warehouse, rental rate, etc. A landlord may be willing to provide 6 months free for a 10-year term but not likely for a 5-year and certainly not for a 3-year.

Moving & tenant improvement allowance

How much? Allowances are based on a number of factors; including but not limited to, length of lease term, rental rate, landlord’s pro forma, etc. If they’re paying a “far lower rate” there’s a high likelihood that there will be “far lower” money the landlord is willing to provide for either a moving or improvement allowance. As mentioned previously, if they are truly being offered a “far lower rate” this would likely be because the property is more warehouse than flex and would require a significant build out to make it comparable to your property.

In summation, based on these points along with the list of current, available options I do not believe this to be an accurate claim. They may be able to find a space that has two of the three, if they are willing to sign a longer-term lease, but not all three and not in this submarket.

Not explicitly addressed in my response but a telling an important point is that the tenant suggested that my client speak with their commercial broker; clearly so that they could receive unbiased advice. After all, this is the impartial party whose appraisal of the leasing market is founded on objective data and not on the fact that they only get paid a commission if the tenant moves or if they’re able to convince my client to pay them if they can convince their own client, the tenant, to renew. Just like landlords (can) take advantage of unrepresented tenants’ lack of experience, expertise, and market knowledge the reverse is also true. My client was unrepresented when they originally negotiated the lease with their tenant; resulting in a renewal option without a notice period and in which the rental rate was capped. They also agreed to a 3-year lease term, which is not long enough for it to be a viable investment sale and is too long for the property to be considered by an owner-user. Commercial real estate decisions should not be made in isolation, but rather should be part of a greater strategy based on the client’s goals and plans. Good commercial real estate brokers, particularly CCIMs, have the analytical tools to help clients formulate said plan and the expertise to structure deals in accordance with it.

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