Trying to completely cover the leasing process in a few paragraphs would be understating its importance. Your rent will be one of, if not the single largest monthly expense. Upon finding a location satisfactory, you must then be able to negotiate the lease to terms which will facilitate your startup, coincide with your anticipated opening (which in our industry is imperative), insure your long-term profitability, and make it possible for you to sell your business in time to someone who may continue on successfully. In order to do so, you must understand that everything is negotiable in a lease. Anything is fair game for discussion. And the stronger your business plan and financials, you will find the more flexible landlords will be.
Negotiating a commercial real estate lease needn’t be a battle. Remember, and you shouldn’t have to remind the landlord of this, that it is in both of your best interests that you are successful. If you lease on bad terms, you go out of business, and they have no tenant. In fact, many landlords now recognize that providing “superior tenant service” begins by making the lease negotiation process as simple and efficient for tenants as possible. As important as it is to arrive at a lease agreement that meets the needs of both tenant and landlord, long delays over minor details serve neither party.
It has become more commonplace that landlords have ‘standard’ alternate clauses prepared to substitute should the situation dictate. This prevents delays in legal counsel having to re-prepare specific language repeatedly.
If you choose to deal with an agent, make sure that they are looking out for YOUR best interest. Just hiring an agent doesn’t commit them to your success. Bear in mind that oftentimes they are going to be paid by the landlord for filling the space. Building a relationship with your agent can be done, just as building a relationship with your banker, your realtor you bought your home with, or your advertising agent – with communication. Ask around, ask other agents, ask the agent questions, leave nothing to question.
Some basic terminology, to simplify the explanation process.
Request For Proposal (RFP): To be sent, via your agent, to the landlord to request a copy of their standard lease form agreement. The RFP will address many important issues but should always include a section outlining the tenant’s expectations with respect to Common Area Maintenance (CAM) and Tax Escalation.
Standard Lease Form Agreement: The standard lease that every landlord has prepared for any commercial property up for lease. Terms and language may differ from property to property, landlord to landlord, but remain very similar in structure.
Base Rent: The asking price for the space itself, not including any taxes, maintenance, insurance, or any type of financed money that may be used for buildout.
CAM: Common Area Maintenance. Do not assume or mistake CAM for Triple Net, or you may be in for a surprise.
Triple Net: The total between the CAM, taxes, and insurance. Depending on the number of other tenants, you may pay a pro-rata share of this cost, or if you are a free-standing unit, you may have the entire cost.
Gross Rent: The base rent plus the Triple Net. This should be the amount you expect to pay throughout the lease.
Vanilla Box: Very vague terminology that can vary tremendously. Generally defined as primed drywall shell, concrete floor, basic commercial lighting, electrical to breaker box, and basic HVAC. Depending on the landlord’s understanding of a ‘vanilla box’, you may walk into more or less than this. Make sure the ‘vanilla box’ is clearly defined in the lease.
CPI: Consumer Price Index. CPI is a government derived number to measure the value of a dollar relative to previous years. CPI is typically the factor used to figure any increase in lease amounts from year to year or during option periods because the government updates the number on regular intervals and it is easily accessed.
Build Out: Also called TI, or Tenant Improvement. This is the amount of money estimated to go from ‘vanilla box’, to a finished club minus equipment. Build out is a major bargaining tool for you, especially while trying to startup with little cash on hand.
Option Periods: Option periods are the time periods, if any, following the initial lease period. Option periods are very important because of the potential fluctuation of lease amounts that may occur. This reveals the importance of the CPI and asking for a cap on the increase. You must define as stringently as possible the costs operating in the future of your business. If not, you may end up paying whatever the market will bear, and that could either put you out of business, kill your profits or business value, or make is simply impossible to sell.
Before getting into specifics of the lease, remember your objective: Secure the space you want, at the best rate possible, keeping as much money in your pocket as possible, until you decide you want to/are able to, sell at a good price to someone who can continue to make money. When you sell your business you are selling this lease also, so make sure you negotiate with that in mind.
A brief overview of the basics of a lease:
An initial lease period of (x) years, option periods to extend after the initial period. If the landlord is uncomfortable with the option periods, you may extend your initial period to 7 or even 10 years, depending on your assessment of the area. For a longer lease term, if your business plan and financials are strong enough, you may negotiate for a lower lease amount per square foot. Security over a longer duration is more valuable to the landlord than high dollar, short term, shaky tenants.
When negotiating option periods, your objective is to define your future rent as accurately as possible. To do so, the rent should be adjusted relative to the CPI, and a cap of no more than three percent yearly should be in place.
I recommend asking for a number of months free rent and/or half rent for several months, from the date the Certificate of Occupancy is issued. Your business needs time to get healthy and grow, and this no rent/reduced rent period facilitates that.
When negotiating the buildout, the ideal scenario for you would be that the entire amount will be paid by the landlord. Again, if you have the financials and the business plan, the likelihood of this happening goes up. Even if you don’t have strong statements, you can still get some help here. You may get a percentage of the buildout paid for (ideally the larger ticket items – HVAC, electrical, etc.), or the landlord may factor the amount into your lease and you repay it over time, or a combination. Be careful that any concession on the landlord’s behalf isn’t overcompensated for in your dollars per square foot lease amount. If the landlord refuses to pay for any of the buildout, you may have to get them to move on the free/discounted rent duration, or some other facet of the lease.
You should be able to sublet space in your own space to another small, related business. This may be chiropractic, massage, or physical therapy. All considerations should be included, from insurance and liability to the access to the building allowed to these subcontractors.
There should also be a specific clause in the lease pertaining to your right to assign the lease without undue landlord interference. At any point you decide it is time for you to sell, dealing with a generic right to assign clause is a headache you want to avoid. This is a clause that you may want to have your attorney draw up, to make sure it is strong enough to prevent a problem.
The Lease should contain exclusions that the landlord will not accept competing businesses in the same center or specified area. This should include all other fitness centers, and may include tanning centers, weight loss centers, supplement stores/juice bars, massage therapists, etc.
Signage should not be overlooked by the tenant, as you can be sure that the landlord hasn’t. First, make sure of your legal rights in your community as they relate to signage. Research sign codes and get in writing exactly what those rights and codes are from the landlord. It must be absolutely clear to both parties exactly what the expectations are with the signage. Size, colors, attachment, etc., all have to be defined and understood in order to avoid any last minute surprises due to violations.
One final note, but certainly not lacking in importance, is the required guarantee on the lease. Similar to banks, most landlords will want you to sign as a business, as a personal guarantor, and possibly a co-signor will be needed. It is in your best interest personally to not sign as a personal guarantor, if at all possible. If the business guarantees the lease, and something goes wrong, the business is liable, but you are not personally. If you personally guarantee the lease, then the landlord may come after your personal assets to satisfy the amount of the lease. This is extremely important if you are involved in a partnership or corporate entity in which the financial burden is unbalanced, meaning someone in the group has more to lose financially. The personal guarantee will also reflect directly on each person’s financial statements. This will be very important when you decide, either individually or as a company, to borrow more money. All of this should be addressed in the business plan ahead of time. If the financials are strong, you may be able to sign as a business, and not worry about the personal guarantee. If not, one way to negotiate is to ask for a clause which will let you sign personally for a designated time period, and then if your business and financial statements are healthy enough, to resign as a business only, removing the personal guarantee, and continuing the remainder of the lease.
To increase the likelihood that you sign the lease that you need and are going to get what you pay for, make sure that you:
o Describe in detail the landlord’s responsibilities to tenant. For example, a carefully drafted lease will set forth the hours during which heating and air conditioning will be provided and will establish agreed-to temperature and humidity ranges.
o Define what constitutes a default by the landlord and describe the remedies available to the tenant if the landlord fails to perform its obligations. Many landlord lease forms eliminate these provisions entirely or severely water down the remedies available to the tenant.
o Provide a method for quick, inexpensive and final resolution of any disputes over the lease.
o Don’t get too emotional about a space or time frame, and make sure you have your money before you sign for anything.
o Negotiate for the future of your business.
Other ideas to consider further:
Option to buy property
Sound proofing the location.
Rent averaging – lower rate escalating yearly to higher rate.
Substantial and Partial Destruction and Timely Remedies.