Overcome the Security Deposit Deadlock

It’s not uncommon to arrive at an impasse when negotiating the security deposit for a commercial office lease, since it can often be the final business point to negotiate during the proposal process following the landlord’s review of the tenant’s financials.  So what do you do when the landlord proposes a security deposit that’s substantially higher than your expectations or capabilities? 

It’s first important to understand how the landlord arrives at their determination.  To say building owners are somewhat risk adverse is like saying fish prefer to swim in water.  Different factors motivate different ownerships, but generally they’re looking for a security instrument that will cover at least a portion of the following in the event of a default:

• Transaction expenses such as brokerage commissions and legal expenses
• Tenant Improvement Allowance / Construction & design costs
• Vacancy loss (as landlord relets premises)

How big that portion is will depend on the tenant’s credit: several factors include the length of the tenant’s operating history, existing debt obligations, burn rate (if investor-backed), profitability and current cash position.  

Here are a few solutions you can propose to overcome a deadlock when there’s disagreement in the security deposit: 

• Burn Down:  Propose a structure whereby the cash security deposit burns down over time, either in the form of a rental credit or a return of the cash.  Example: the security deposit amount burns down by one month for every year the tenant makes timely rental payments. 

• Irrevocable Letter of Credit (LOC):  In lieu of a cash security deposit, a landlord may agree to the tenant securing the lease with an LOC.  The main advantage to this is that the cash stays on your balance sheet and is thus deployable for salaries and operating expenses.  In the event of a default, the landlord may draw upon the LOC at which point it becomes a liability; however, until then it’s simply an off balance sheet disclosure. 

• Cash Security Deposit / Pre-paid rent:  This is a hybrid of the Burn Down.  Example: give the landlord a one month cash security deposit and prepay 6 months’ rent in advance. 

• Good Guy Clause (GGC):  This is a great solution for start-ups with limited cash and a short operating history, and landlords who are worried about a costly eviction process if the tenant defaults.  Basically, an individual signs a personal guarantee with the landlord that’s terminated as long as the tenant agrees to vacate the premises and leave it in good condition if they can no longer afford to pay rent.  Read more about the GGC here. 

Even with the above solutions, a landlord and tenant are still too far apart on terms.  Revisit the path your landlord took in determining the dollar amount, and consider ways to reduce their economic exposure.  Perhaps you could take the premises “as is” and defer tenant improvements until later, or your broker could agree to defer their commission until a later date (personally, I do this for startups often).  

Finally, you may simply need to consider a different property with a different ownership structure that is less risk-adverse, or perhaps a co-working space until your company matures (read “Co-working: the good, the bad and the kombucha keg”). 

In closing, it’s important to agree to the security deposit early on in the process so you do not waste time if you ultimately arrive at an impasse.  

How the Sale of Your Building Could Cost You Money

California’s Proposition 13 provides a statutory limit on annual increases to the assessed value of a property. Basically, the state general levy tax rate is limited to 1.0% of the property’s value and cannot increase more than 2.0% per year, unless the building is sold, more than 50% is transferred, or substantial new construction is completed.  (Note that the tax rate can and usually does exceed 1% because there is no limitation on municipal tax rates or special assessments).

So what does this mean to California’s office tenants?  If the building you occupy sells to a new owner during your tenancy, the building could be reassessed at a much higher value than when you initially moved in, and you could get stuck with a substantial increased tax bill passthrough.

Let’s assume that your company leases 10,000 square feet in a 100,000 square foot building (10% pro rata share)  and signs a 5-year lease in 2013.  Let’s also assume that the building hasn’t been sold in a while, and therefore has a low property tax assessment.  For our example, we’ll pretend that the building is currently valued at $200 per square foot, or, $20,000,000, and that in 2013 property taxes for the building were approximately $300,000 (at a rate of 1.5%).

Increases in operating expenses such as property taxes are passed through to tenants and collected according to the tenants’ pro rata share.  Therefore, when taxes are increased by 2.0% to $306,000 in 2014, you will have to pay your 10% share of the $6,000 increase, or $600.

However, let’s say that in 2014 the owner of your building decides to sell it to an investor for $50,000,000 ($500/SF), the property is reassessed and taxed on the new value, and the property taxes are increased to $750,000.  In this example, the increase in property taxes from 2013 to 2014 would be $444,000 and since your firm occupies 10% of the building, you’d get handed a bill for $44,000.  And the fun part? You’ll get to pay that bill every year until your term runs out.

So is there any way to avoid this?  Yes, but it’s highly unlikely.  If you’re a large tenant in a soft market, you may be successful in negotiating “Prop 13 Protection” into your lease, whereby any “Due On Sale” taxes cannot be passed through to you.  Building owners are extremely resistant to agreeing to this, however, as it adversely affects the selling price.  Another strategy, if you know a sale is imminent, is to try and get your Base Year set to the year of the anticipated sale which could be achieved in a new lease or upon a renewal.

For everyone else, it is crucial that you do your homework before signing a new lease or renewing your existing one.  Being well informed is the name of the game.  Assuming you do business in a market that continues to appreciate, the more time that has passed since a property’s last reassessment, the larger the increase will be upon a sale.  I call it “The Rubber Band Effect” – the more you stretch it, the more it’s going to hurt when it snaps.

Knowing not only when the subject property was last reassessed but also the likelihood the ownership could change hands during your tenancy should be a top priority and can help you avoid egregious and unexpected pass through expenses that most all office tenants are exposed to.

How the Sale of Your Building Could Cost You Money

Jarvis
Howard Jarvis – Author of Prop 13

California’s Proposition 13 provides a statutory limit on annual increases to the assessed value of a property. Basically, the state general levy tax rate is limited to 1.0% of the property’s value and cannot increase more than 2.0% per year, unless the building is sold, more than 50% is transferred, or substantial new construction is completed.  (Note that the tax rate can and usually does exceed 1% because there is no limitation on municipal tax rates or special assessments).

So what does this mean to California’s office tenants?  If the building you occupy sells to a new owner during your tenancy, the building could be reassessed at a much higher value than when you initially moved in, and you could get stuck with a substantial increased tax bill passthrough.

Let’s assume that your company leases 10,000 square feet in a 100,000 square foot building (10% pro rata share)  and signs a 5-year lease in 2013.  Let’s also assume that the building hasn’t been sold in a while, and therefore has a low property tax assessment.  For our example, we’ll pretend that the building is currently valued at $200 per square foot, or, $20,000,000, and that in 2013 property taxes for the building were approximately $300,000 (at a rate of 1.5%).

Increases in operating expenses such as property taxes are passed through to tenants and collected according to the tenants’ pro rata share.  Therefore, when taxes are increased by 2.0% to $306,000 in 2014, you will have to pay your 10% share of the $6,000 increase, or $600.

However, let’s say that in 2014 the owner of your building decides to sell it to an investor for $50,000,000 ($500/SF), the property is reassessed and taxed on the new value, and the property taxes are increased to $750,000.  In this example, the increase in property taxes from 2013 to 2014 would be $444,000 and since your firm occupies 10% of the building, you’d get handed a bill for $44,000.  And the fun part? You’ll get to pay that bill every year until your term runs out.

So is there any way to avoid this?  Yes, but it’s highly unlikely.  If you’re a large tenant in a soft market, you may be successful in negotiating “Prop 13 Protection” into your lease, whereby any “Due On Sale” taxes cannot be passed through to you.  Building owners are extremely resistant to agreeing to this, however, as it adversely affects the selling price.  Another strategy, if you know a sale is imminent, is to try and get your Base Year set to the year of the anticipated sale which could be achieved in a new lease or upon a renewal.

For everyone else, it is crucial that you do your homework before signing a new lease or renewing your existing one.  Being well informed is the name of the game.  Assuming you do business in a market that continues to appreciate, the more time that has passed since a property’s last reassessment, the larger the increase will be upon a sale.  Think of it like a rubber band; the more you stretch it, the more it’s going to hurt when it snaps.

Knowing not only when the subject property was last reassessed but also the likelihood the ownership could change hands during your tenancy should be a top priority and can help you avoid egregious and unexpected pass through expenses that most all office tenants are exposed to.

San Francisco’s Mid Market and the “Twitter Effect”

twitterSo who’s to thank for surging rents in San Francisco’s Mid Market corridor? The technology sector, naturally, whose epicenter has steadily been migrating from Silicon Valley to downtown San Francisco.  Operating the business to be closer to the tech talent pool is a trend that represents a shift in the thinking behind where a company decides to set up shop.

The Bay Area’s talented engineering and programming labor pool doesn’t live in suburbia – they live in San Francisco.  So to attract and retain this highly sought after demographic companies have been migrating to or launching in SoMa, Mid Market, Yerba Buena and the Financial District.  Now the City is in the throws of a commercial real estate boom that’s being fueled by technology tenants (who were single-handedly responsible for leasing over 1/2 of the 10.9 million square feet leased in 2012).

As SoMa quickly began filling up, developers and landlords set their sights on the short stretch of Market Street from 5th to Van Ness, and began to buy.  What kicked off “The Twitter Effect”, however, was Shorenstein’s purchase of 1355 Market and their following announcement of Twitter’s relocation to their new acquisition.  The eponymous technology company also took advantage of an attractive rental rate and the Board of Supervisors’ 6-year payroll tax exemption.  They now call 215,000 SF at Market Center their home and have invoked “The Twitter Effect” by attracting many other notable tenants to the area such as Square, Call Socket, Dolby, Pinterest, One King’s Lane and Yammer (who signed a 79,000 SF lease at $48.00 per foot – 60% higher than Twitter’s $30.00).

Other  San Francisco tech leases tightening the market include:

  • Salesforce.com – 440,000 SF at the upcoming 350 Mission St.
  • Square – 327,432 SF at 1455 Market St.
  • Meraki – 110,000 SF at 500 Terry Francois Blvd.
  • Yelp.com – 98,144 SF at 140 New Montgomery St.
  • Splunk – 92,000 SF at 250 Brannan

So what’s an existing San Francisco tenant to do when their occupancy costs could potentially double upon their lease renewal?

Read: “Help! My Landlord Wants to Double My Rent!”

What I Learned While at 42Floors

Yesterday, I wrapped up a one-month consulting position with San Francisco-based 42Floors.com. As a tenant rep advisor that’s passionate about commercial real estate and technology, I jumped at the opportunity to join the team and get a feel for what it’s like to work within a fast paced startup in the midst of SoMa’s exciting technology boom.

The 42Floors Crew
The 42Floors Crew

In a nutshell, 42Floors is a free search engine for office listings in San Francisco and  New York, wrapped up in a gorgeous user interface.  The model itself isn’t exactly groundbreaking, except for the fact that their current focus is not on monetization, but on creating the absolute best user experience possible.

Here’s how it works.  The user searches active office space listings and when they find something they like, they submit their contact information and the handoff is made to the listing broker, who then follows up with them to schedule a tour of the space.  Nothing revolutionary there.  Where 42Floors really sets itself apart, however, is with their Concierge; a human being that uses a telephone to actually call you.  How many companies actually do that anymore, and for free?  Their only task is to make sure you’re happy, answer questions about the market and commercial real estate, and ultimately, that you’re successful in finding your new office space online through their website.

Don’t get me wrong, there are plenty of other great features that elevate the user experience, like robust filtering options, photo-intensive listings and rental estimates for properties that don’t publish their asking rents, but the Concierge addresses a gaping hole in the online listing arena: tenants not only need but deserve the advice of an expert that’s looking out for their interests.  This is something that gets lost when a tenant uses the internet to find an office space online and then cuts a direct deal with the landlord without being represented by an advisor.  With 42Floors Concierge, the tenant can receive guidance and assistance from a professional they can trust.

My big takeaway from my experience with helping 42Floors develop their concierge program, is that tenants will always need a human advocate, and 42Floors understands that.

Just like WebMD.com will never replace the role of the doctor, 42Floors.com will never replace the role of the tenant advisor – they exist to enhance and compliment the process, be it a trip to the hospital or signing a new office lease.

Help! My Landlord Wants to Double My Rent!

ScaredIf you’re an office tenant in San Francisco (or any other market where vacancy is plummeting), there’s no doubt you’ll probably face a substantial rent hike upon your upcoming lease expiration. Since 2010, rents in the City have risen 39% and in 2012 alone, 24%; representing the biggest gain of any market in the world.

Relocating your office can be expensive and disruptive to your business, so if your first choice is to stay and renew, here are a few strategies that can help mitigate the rental increase.  The days of passive negotiation are gone; you need to be proactive.

  1. Renew your lease as early as you can.  The sooner you renew, the lower your rate will be.  Unfortunately, your landlord is also aware of this and typically will not renew your lease if too much term is remaining.  They’d much rather have you come back to negotiate at a later date, when rents are higher.  Every ownership is motivated by different things, however, so it doesn’t hurt to begin the dialogue early. 
  2. Explore options outside of your building.  Even if you fully intend to stay, you need to get out in the market and see what else is available.  You cannot expect to have any negotiating leverage with your landlord if their property is your ONLY option.
  3. Explore options within your current landlord’s portfolio.  If you’re getting priced out of your current office space, perhaps there’s a less expensive option elsewhere in the building on a lower floor, or even within another building your landlord owns.
  4. Reduce your square footage.  One of the most effective ways to reduce your monthly operating expenses is to simply lease less space.  Identify inefficiencies within your current space and consider consolidation or reconfiguration.  Are there employees in private offices that could be just as effective in a workstation?  Could employees who are out of the office regularly share a common workspace? There also might be an opportunity to “give back” some space upon your renewal whereby the landlord carves out a section of your office and builds a demising wall, thus reducing your rentable square footage.
  5. Hire a commercial real estate advisor.  Your broker is the best source of market information, and when you’re well-represented, your landlord knows you have access to valuable market information and may potentially relocate if they don’t offer you a fair deal.  But your broker also knows something your landlord does: renewing existing tenants is cheaper for the landlord than signing leases with new ones. Should you leave the building, the landlord will temporarily lose rent while the space is unoccupied. Also, brokerage commissions and tenant improvement allowances are typically higher on new leases.  Your broker will quantify these costs, translate them into real numbers your landlord can understand and then make a business case as to why your renewal rate should be lower than their current asking rate.

Rental increases are a natural part of the cycle and being prepared and proactive is the best way to mitigate an inevitable rental hike.  Ultimately, you’ll need to weigh out the two options of either staying in your space and softening the blow, or relocating to a less expensive building or submarket.

See also: When is the Best Time to Renew an Office Lease?

A Costly Time Bomb Could Be Hiding in Your Office Lease

The Restoration Clause is a seemingly harmless, fluffy little kitty that sleeps tucked away within an office lease… until you reach out to pet it and it jumps on your neck and claws your eyes out.

It is a legal obligation for a tenant to restore, at the landlord’s request, the premises back to the condition it was in before you moved in, and could be a very costly going away present to your landlord should they exercise their right.

Normally, a tenant can negotiate the teeth (or claws) out of this provision or have it deleted in its entirety, or many times the landlord won’t require the tenant to restore the space because the subsequent tenant will benefit from the leftover improvements.

So why are landlords now pushing harder for restoration in lease negotiations, and more frequently exercising this clause as leases expire?  Because there has been a 180° shift in how offices are being built out, and tenants are increasingly demanding “open plan” layouts rather than private office intensive build-outs.  Therefore, if the exiting tenant has landlord-centric restoration language in their lease and the new tenant wants an open office, you can be sure the landlord is going to stick that tenant with the cost of demolition.  That also means that if the incoming tenant desires an open plan and wants the landlord to tear down 30 perimeter private offices, the landlord is going to try its best to reserve their right to obligate that tenant to restore them at the end of their term if the new tenant doesn’t wants them back.

So what can a tenant do to protect themselves from this potential costly exposure?  First, fight hard in the initial lease negotiations to completely strike the restoration clause.  If the landlord won’t budge, then fall back on agreeing to restoration, but with the condition that the landlord must decide whether or not they’ll invoke their right BEFORE you conduct the work.  That way there, you’ll at least know before you spend the money whether or not you’ll be required to spend extra money (and effort) at the end of the term to restore your premises back to their original condition.  If the landlord won’t agree to those terms, then you’ll at least take out the guesswork and be in a better position to decide if this is still the right space for you and if the potential added expense is worth it.

If this little gem is already in your lease and you missed it because you weren’t represented by a real estate advisor, now’s a great time to call one up and have them conduct a lease review for you.  They’ll be able to provide you with their professional opinion of its implications, and may be able to provide a solution that could dampen or eliminate the exposure.