Over the years I’ve observed that for many tenants, once the lease has been executed it’s filed away and forgotten until it’s time to renew or relocate. This is partially because they’re focused on their core business but also because they assume that once the lease is signed, the terms cannot be modified again until after the expiration date; this is simply not true. Depending on factors such as a change in the building’s occupancy level, the general overall health of the local market, and even a change in the building’s ownership, improving the terms and rental rate could be achievable by the tenant as leverage may have shifted. At the very least, a quick refresher will remind a tenant of key dates, their rights and options, or even a potential liability they’re currently exposed to.
As we head into the New Year it’s a good time to dust off your lease and ask your commercial real estate advisor to conduct a review and provide you with an updated lease abstract. Here are five things they should consider:
1. Could your rental rate be immediately lowered?
If the rental rate you’re currently paying is substantially higher than where current market rates are, then a “Blend and Extend” strategy may be possible. Simply put, you amend your lease to extend the length of your term, and blend the new lower rate into the present high rate, thereby immediately lowering your rent. If your lease expiration date is too far in the future or you do not wish to extend the lease beyond that date, there could be other options as well. Perhaps the landlord has a large security deposit on file, and you’ve made timely rental payments whose sum now eclipses the cost of the landlord’s up front occupancy costs (tenant improvements, broker commissions, etc.). Albeit risk-adverse, savvy landlords understand that their tenants’ success is tied to their own. Therefore, they may allow you to apply a portion of your existing security deposit towards rent, and in some cases just simply give some back.
2. Are you aware of important notification and lease dates?
If you have the right to extend your term, the landlord typically will build notification dates into the lease. For example, you may need to notify the landlord of your intent to renew no sooner than nine but no later than six months prior to your lease expiration. This also goes for Early Termination, should you have that right. Make sure to be well aware of when your lease expires, as well. It can sneak up on you and if you don’t plan and time your renewal or relocation wisely, your leverage could potentially be substantially reduced. Mark your calendar and stay ahead of these dates.
3. Have you received and reviewed your Operating Expense Rent Statement?
If the landlord is passing through operating expense increases to you as additional rent, they should be providing you with an annual expense statement. Don’t hesitate to ask your real estate advisor to review your statement for you. If something is irregular they’ll catch it and perhaps recommend you exercise your right to audit, which tenants are usually allowed to do no more than once a year. It’s also worth the effort to make sure expenses are not being passed through to you that were not agreed to in the lease.
4. Does the size of your office still accommodate your needs?
Do not think that you have to “ride out your lease” if you’ve outgrown your space or perhaps have had to reduce the size of your staff. Your real estate advisor can help you work with the landlord to relocate within the building into a more appropriately sized suite, and if one is not available, then subleasing may be an appropriate solution.
5. What sublease rights do you have?
For many reasons, tenants often need to get out of their space in advance of their lease expiration date, and subleasing can be a wise exit strategy. However, not all sublease clauses are created equal. First, do you even have the right to sublease, and if so, what restrictions will be placed on you? Are you allowed to sublease to existing tenants in the building, or tenants who have recently toured the building on a direct basis? Can you market the space at any rate you set, or does it have to be equal to or higher than direct space in the building? How are sublease profits shared and how much time does the landlord have to respond to a consent request? Know your rights, and how the subleasing terms will likely affect the ability to achieve your desired results.
When several years have passed since you’ve signed your lease, it’s easy to forget what you signed up for in the first place. Your real estate advisor can effectively and efficiently digest your lease, extrapolate key points, and then present them to you in a lease abstract within the context of today’s current market conditions. This quick refresher is time well spent, and having a better handle on your lease’s key points and terms could prove invaluable for whatever may come your way in the New Year.
The Tenant Advocate 
Benjamin – this is a terrific post. Thanks, and may your business prosper in the new year.
That’s very kind of you and I appreciate the feedback. Wishing you the best in 2013, Barbi.
Benjamin – I always look forward to reading your posts. You always present leasing options with your client’s best interests at heart — making tenants re-think their terms and access how they can save money. Much appreciated! Best to you in the New Year!
Thank you Ashley, I truly appreciate the feedback and hope that you and your business can benefit from these posts. Best to you, as well!