LEASING PROPERTY

A lease is a contract between an owner and a user of property. In business lease agreements, the owner (commonly known in lease arrangements as the lessor) receives financial compensation and in exchange, the tenant (also known as lessee) is given the right to operate his or her business on the property. There are many different types of property lease arrangements that can be made, and many different considerations that business owners should weigh before entering into such a contract. But leasing is very popular with small business owners, in large measure because such arrangements allow new or financially-strapped businesses to divert their capital to other business needs. Indeed, many small businesses operate in leased facilities for their entire existence.

TYPES OF PROPERTY LEASES

FULL SERVICE LEASE This type of lease is used primarily in multi-tenant office buildings. In essence, lessees who agree to such arrangements pay a single lump sum for a wide range of supplementary services in addition to the lease payment. Under the terms of full service leases, the landlord is responsible for providing a number of different services for his or her tenants, including security, maintenance, janitorial, and various utilities (water, electricity, air, heat).

GROSS LEASE Under the terms of a gross lease contract, the lessee pays the lessor a gross amount for rent (as well as sales tax when applicable). Property costs such as property taxes, insurance, and maintenance are the responsibility of the landlord, while the tenant is responsible for utilities that it uses. Sometimes the lease contract will include provisions that require the tenant to cover property costs that go over a certain specified level.

Variations of this basic lease arrangement include the flat lease and the step lease. The flat lease is the most basic type of agreement, and generally the most popular with small businesses. It calls for the lessee to pay a flat set price for a specific period of time. The step lease, on the other hand, calls for a gradual escalation of the base rent payment over time in recognition of the likely rise in owner expenses in such areas as taxes, insurance premiums, and maintenance. A related lease contract, usually known as the cost-of-living lease, includes rent increases based on general inflation figures rather than increases in specific expenses.

NET LEASE The net lease is the most ubiquitous of the various lease contract types. Under the terms of a net lease, the tenant pays the landlord a base rent as well as an additional sum that covers the tenant's share of property taxes on the facility. When taxes increase, it is the responsibility of the tenants to cover those costs. The obligations of each tenant are figured by determining what percentage of the total facility is occupied by each tenant. If a business occupies 20 percent of a facility that has just been hit with a rise in property taxes, for example, that tenant is responsible for paying 20 percent of that increase.

Variations of the basic net lease include the "double-net" lease and the "triple-net" lease. Under the terms of a double-net lease, the terms of the contract are such that the tenant is responsible for picking up added insurance premiums as well as tax increases; under triple-net leases, tenants are responsible for covering insurance premiums, tax increases, and costs associated with maintenance and/or repairs of the building, the parking lot, and other areas used by the lessee. The triple-net lease is popular with landlords for obvious reasons, and small business owners should note that such arrangements sometimes make landlords less attentive to upkeep in these areas than they might be if they had to foot the bill themselves.

PERCENTAGE LEASE This arrangement calls for tenants to pay a base rent and/or a percentage of the lessee's gross revenue. This percentage, which can run as high as 10-12 percent in some contracts, is paid on an annual, semiannual, or quarterly basis (some malls and shopping centers, however, call for even more frequent payments). This lease arrangement is a favorite of lessors with property in coveted retail areas; the percentage lease is not favored by tenants, but the laws of supply and demand often make it possible for owners of desirable property to insist on it. For small business owners who sign such leases, it is important that they fully understand what the contract defines as "gross revenue." "Be specific in how you define gross sales," wrote Fred Steingold in Legal Guide for Starting & Running a Small Business. "Depending on your type of business, certain items should be deducted from gross sales before the percentage rent is determined. Here are some possibilities:

* returned merchandise
* charges you make for delivery and installation
* sales from vending machines
* refundable deposits
* catalog or mail-order sales
* sales tax

In short, make sure your lease excludes all items that overstate your sales from the location you're renting."

ADVANTAGES AND DISADVANTAGES OF LEASING

The Small Business Administration (SBA) counsels small business owners to consider a variety of factors when weighing whether to lease or buy property. These considerations include:

* Operating requirements—if the business's operating requirements are expected to change significantly over the next several years, leasing would probably be preferable, since it allows businesses to move more easily.
* Capital supply and capital needs—leasing frees up a greater percentage of a small business's capital for other operating needs (advertising, production, equipment, payroll, etc.). If the business does not have a lot of extra cash on hand (and few small businesses do), then leasing may be the more sensible choice. This is probably the biggest reason why small companies lease.
* Financing and payment flexibility—It is generally easier to secure financing to lease rather than purchase a property. In addition, leases can be spread out over longer periods than loans and can be structured to compensate for cash flow variations (the latter can be an important factor for seasonal businesses).
* Resale value—Is the value of the property likely to increase? If so, how much? Many small business owners choose to purchase rather than lease—even if they have to accrue significant debt—if they decide that the asset is a worthwhile long-term investment.
* Equipment—Many lease agreements include stipulations that provide lessees with increased flexibility in terms of upgrading and/or maintaining equipment.
* Taxes—Property owners enjoy tax benefits such as depreciation and investment tax credits that are not open to tenants.

OTHER LEASE TERMS

In addition, there are other elements of a lease agreement that can weigh heavily on a contract's overall acceptability. Indeed, the details of lease contracts can vary enormously. "In theory," noted Steingold, "all terms of a lease are negotiable. Just how far you can negotiate, however, depends on economic conditions. If desirable properties are close to full occupancy in your city, landlords may not be willing to negotiate with you over price or other major lease terms. On the other hand, in many parts of the country where commercial space has been over-built, landlords are eager to bargain with small businesses to fill empty units."

LEASEHOLD IMPROVEMENTS Small business owners who find themselves in negotiations with property owners over lease terms should make sure that they pay attention to a variety of issues that, if overlooked, can be costly. For example, leases will usually cover any remodeling that needs to be done to the property and specify who will pay for it. Most of this remodeling falls under the category of "leasehold improvements": carpeting, insulation, plumbing and electrical wiring, lighting, windows, ceiling tiles, sprinkler and security systems, and heating and air conditioning systems all fall under this heading. Small business owners should try to ensure that the lease specifies each improvement that the landlord will make to the property and when those improvements will be made (ideally, they should be completed before the move-in date). The landlord's willingness to fit the bill for such improvements typically depends on several factors, among them the length of the lease agreement; the business's value to the landlord as a tenant ("anchor" tenants typically have more clout in these areas); and the likely long-term economic benefits harvested by the landlord from the improvements (in terms of property value and future rentals). However, as Steingold noted, "if you [the small business owner] have specialized needs—for example, you're running a photo lab or a dance studio—and your darkroom or hardwood floor would be of limited value to most future tenants, don't expect the landlord to willingly pick up the costs of the improvements. The landlord may even want to charge you something to cover the cost of remodeling the space after you leave." Some leases provide tenants with the option of making improvements themselves, provided that they adhere to certain guidelines and restrictions.

LENGTH OF LEASE Negotiations between tenants and landlords often snag on the question of lease length. As Craig Melby and Jane Utzman noted in their book Site Smart, "the length of the lease is usually a very important issue. Some landlords may want a long lease for financial stability, others may prefer a short lease because of hopes that rental rates may rise in the short term future. Tenants may want a short lease in case of a decline in their business, or if their business becomes more profitable and they need more space for expansion purposes. Other tenants may want a longer term lease because of their large investment in tenant improvements, amount of money spent advertising a new location, as well as moving costs if their lease isn't renewed. Depending on what the landlord wants, the length of the lease will effect all other concessions offered." Generally, small business owners try to secure leases with mid-range lengths. Leases of less than a year can leave them more vulnerable than they would like, but multi-year terms can be dangerous as well, especially if the business is new and unproven. A common compromise is to include an "option clause" in the contract so that the lessee can stay if he or she wishes at the conclusion of the original lease period.

EXCLUSIVITY Many small business owners quite reasonably insist that any lease agreement they sign contain what is commonly known as an "exclusivity clause." This clause provides the tenant with an exclusive right to sell his or her product or service on the property, "thus obligating the landlord to prevent other tenants from selling those same goods or services," wrote Melby and Utzman.

INSURANCE Landlords often ask lessees to secure insurance in the event that 1) the tenant damages the leased property, or 2) customers or others suffer injuries on the premises. "The landlord may specify the specific dollar amount of liability coverage required by the tenant," noted Melby and Utzman. "The landlord will also insure the building in respects to liability and property damage. While the landlord's and tenant's liability coverage may overlap, the property insurance covered by the landlord includes everything except the interior contents of the tenant's space. Most leases require [tenants] to provide the landlord with proof of insurance."

USE OF PREMISES Shopping center/strip mall land-lords typically include language in the lease contract providing specific details on approved uses of the premises that is being rented. Such stipulations often serve to protect the businesses of other tenants. For example, the owner of a cafe in a strip mall may be quite unhappy if his neighbor, who formerly ran a quiet sports memorabilia shop, decides to change gears and launch a tattoo parlor. "The use of the space definitely affects the tenant mix of the [shopping center] and may directly affect the neighboring tenants as well," explained Melby and Utzman. "If the tenant changes their scope of business or products they sell, the image of the center might suffer. In many retail centers, landlords spend a significant amount of time and money attracting the right mix of tenants to the center that will attract a specific type of shopper. To maintain the center's value, the use must conform to the tenant mix that will most benefit the center."

In addition, lease contracts provide stipulations and regulations on a plethora of other issues of interest to both lessors and lessees. These include:

* Signage (regulates the size, style, and brightness of tenant advertising signs)
* Compliance with various zoning laws, permits, restrictions on use of space
* Compliance with other local, state, and federal laws
* Subletting or assigning the lease
* Definition of the space being leased
* Security deposit
* Landlord's right to enter leased space
* Relocation (wherein the landlord relocates a tenant to another space because of remodeling or expansion by a neighboring tenant)
* Default provisions
* Hours of operation
* Incidents of damage or destruction from natural causes
* Repairs
* Indemnification provisions
* Abandonment (by the tenant, either through outright abandonment, diminished hours of operation, etc.)
* Condemnation (cases where all or part of the property is taken by city, county, state, or federal government for other use, such as road, right-of-way, or utility easement)
* Bailout clauses (in the event of catastrophic developments—tornadoes, riots, wars, floods, droughts, etc.)
* Cotenancy clauses (allows the business owner to break the lease if an anchor store closes or moves)
* Recapture clauses (also known as a cancellation clause, this allows landlords to evict tenants for breach of contract if the tenant is unable to meet minimum rent requirements)

CHOOSING BETWEEN EXISTING AND PLANNED BUILDINGS

Most start-up businesses move into already existing facilities. Many small business owners who have built up profitable, established enterprises, however, often have more options when they decide that the time is right to move. Indeed, some choose to arrange a lease in a building or facility (office center, shopping center, or industrial park) that is still in its planning stages. The savvy small business owner will consider the potential benefits and drawbacks of both choices before deciding. "Leasing in an existing building provides the Lessee …with more known at the time new space is occupied than any other facility option provides," said Wadman Daly in Relocating Your Workplace. "More so than in any other circumstances, the [lessee] is in a position to closely inspect both the facility and the terms of proposed leases in a number of competing locations. However, the nature of the lease in an existing building signifies minimum tenant control over the potential variables in either lease or facility. Rental rates, maintenance and escalation costs, utilities and building features are fixed or relatively non-negotiable. Landlords may vary in their abatements and finish-to-suit clauses, however their basic price structure, like that of the building and mechanical systems, remains unchanged. Of course, there are no investor implications with this option."

But Daly cautions that leasing in a planned building contains its own mix of attractive features and uncertainties: "Building features [in a planned building] will be new, up-to-date and, to a certain minimal extent, capable of adjustment to tenant need. If your lease is important enough to the developer, you may receive some attention when it comes to special requests for identification, parking, security, a prime location in the building, etc." Nonetheless, small business owners should be cautious when approaching such leases, for both the final appearance and utility of the building—as well as its costs—remain unseen and untested when the building is in its planning stages. "Proposed rental rates must be examined in the light of comparable projects with similar advantages," Daly wrote. "Descriptions of less obvious features like parking, air handling systems, security, maintenance, etc., should be clear and complete. The track record of the developer making the offer should be inspected carefully. Is there a history of quality construction at the rental rate asked, or one of build for quick re-sale? Is there a reputation for good maintenance or benign neglect? Regardless [of] the size of the lease or the duration of the proposed tenancy, these and related questions should be probed."

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