Greenstead Consulting Group welcomes NovaCore Communities Inc. as our latest client. NovaCore manages St. Elizabeth Retirement Community a large integrated seniors community using the life lease model. We will perform a specific project setting up approximately 700 leases in a new lease administration software package (Sage CRM300).
Peter D. Morris, the founder of Greenstead Consulting Group has been invited to conduct two leasing training sessions at the upcoming REALTOR® QUEST forum hosted by the Toronto Real Estate Board on May 4 & 5, 2016.
Photo courtesy TREB
Over 8,000 real estate professionals attend REALTOR® QUEST, Canada’s largest REALTOR® Trade Show and Conference. REALTOR® QUEST 2016 will occupy over 280,000 square feet of space at the Toronto Congress Centre, South Building.
Peter Morris, the Founder of the Greenstead Consulting Group, just finished speaking at the Canadian Real Estate Association Commercial Conference on Oct. 2, 2015.
He led a 4 hour intensive workshop during which he shared insider secrets to negotiate better commercial leases.
Workshop participants rated the program “5 out of 5” on his knowledge and style and the program content. They also agreed they learned something new that they could put into action immediately.
Drawing on over 35 years of experience Peter showed participates what it takes to have a successful negotiation whether working for the Landlord or the Tenant. He also explained how this knowledge can be used to gain and retain clients using his P.A.T. formula derived from extensive surveys with landlords and occupiers.
This presentation is now an interactive online course consisting 5 one-hour webinars that individuals or groups can take to improve their business.
If you have a tie to your local real estate board in Canada or the USA the entire webinar package of 5 one-hour sessions is now available to your real estate board at a reduced rate so all member of the board get 50% off the list price. Certain conditions apply.
Here is what participants said of the workshop:
“Would have listened for another 4 hours”
“Will recommend to others”
“I highly recommend the Leasing workshop and related webinar sessions offered by Peter Morris. Having a wealth of experience in the field, Peter provides valuable insights to both experienced Commercial Realtors and those just entering the Commercial sector. He also has a great way of engaging the class and encouraging participation.” Don Patterson LLB, MBA Conference Chairperson
To learn more, please contact:
Peter Morris 250-893-8230
Commercial real estate leases can be intimidating to anyone who does not read and deal with them on a daily basis.
To start, many are over 50 legal-sized pages long, contain 14 major parts, are full of unfamiliar terms such as waiver of subrogation and legalese; such as “Whereas the Party of the First Part…..”
So I am continually shocked when small business owners either don’t have anyone review the lease before signing it or don’t seek the advice of a commercial lease expert. This occurs in about half of all lease transactions involving small business owners according to my own informal survey from decades of leasing, lease administration and training people about lease negotiation, leasing and lease administration.
Even more shocking is that a failure by small business to rigorously negotiate the entire lease document can result in significant financial issues and increased business risk. I’ve seen businesses destroyed due to a poor lease. That is why we show occupiers how to negotiate their lease correctly.
Many small business owners also don’t realize that the lease is the ongoing, two-way contractual arrangement between the tenant and the landlord AND the landlord and the tenant, so they file away the lease after it is signed, never to look at it again. In part, this is because they may be intimidated by the wording.
So here is a tip to cut through the convoluted wording when reading the lease. But keep in mind that anyone unfamiliar with a commercial lease should ALWAYS have a commercial lease expert and their lawyer explain both the lease clauses – in detail – and the nuances of the wording.
Always get or make a duplicate copy of the fully signed lease. The original should be kept in a safe place. It is the ONLY version that should be referenced if an issue comes up, because it is the ‘legal’ copy. The second copy is the one that become a quick reference guide to the lease. You will make a condensed version of the original lease highlighting the key point in each clause, using the copy.
On the duplicate copy ONLY, highlight the main essence of each clause, so that when reading the clause the main point you need to refer to in the management of your lease on a daily basis is highlighted.
Here is an example from a retail property lease concerning the need to keep store sales information. Here is the original wording as contained in the lease:
That the Tenant shall make and keep on the Premises for a period of at least two (2) years from the end of the Lease Year to which they are applicable or, if an audit is required or a controversy should arise between the parties hereto regarding Rent payable hereunder, then until such audit or controversy is terminated, correct
permanent sales records (indicating daily sales reports) in accordance with good accounting and retail practice, which shall be open to the inspection and audit of the Landlord or its duly appointed representative at all reasonable times.
Believe it or not, that is just one sentence. To fully understand how difficult that is to read I put the text through a readability assessment. This assessment uses various tests to determine what grade level you must have to easily comprehend what is written. Scores over 22 should generally be taken to mean graduate level text and most newspapers and non-technical books write for a grade 4 reading level
How did this fair?
|Flesch-Kincaid Grade Level||22.2|
|Automated Readability Index||25.3|
|Average Grade Level||20.5|
These tests indicate that this one clause could a person reading at a PhD level. No wonder leases intimidate people.
Now read that clause again. But this time pick out the most basic intent of the clause. You can either underline the important text or highlight it with a highlighting pen. But remember that if you make further copies of highlighted text, the highlighted portions may turn black depending on the colour of highlighter used.
How do you do that without having a PhD to understand the clause in the first place?
Use the Who, What, When method.
Almost all lease clauses provide direction to someone to do something by some time. To simplify the wording – for everyday needs – highlight Who must take action, What that action is and When is must be done.
Here is what you get:
That the Tenant shall make and keep on the Premises for a period of at least two (2) years from the end of the Lease Year to which they are applicable or, if an audit is required or a controversy should arise between the parties hereto regarding Rent payable hereunder, then until such audit or controversy is terminated, correct permanent sales records (indicating daily sales reports) in accordance with good accounting and retail practice, which shall be open to the inspection and audit of the Landlord or its duly appointed representative at all reasonable times.
And now the score is:
|Flesch-Kincaid Grade Level||8.8|
|Automated Readability Index||10.1|
|Average Grade Level||8.9|
There is certainly a lot more in the original clause than in the simplified, pared down version, such as where the documents should be kept, how they should be formatted, etc. But anyone reading the highlighted copy for the daily management of the lease will know that, in most circumstances, the tenant must keep sales records for two years after each lease year and those records may be audited by the landlord.
This isn’t a substitution for the exact lease wording and an understanding both the business and legal aspects of the original wording. It is however, a quick guide to gaining a basic understanding of the lease requirements for your day to day need.
Always remember that the lease is written from two perspectives.
The first is the legal perspective. That is why we have long complicated clauses as lawyers attempt to minimize risk by including as many specifics as possible over as many potential situations as possible. For this reason alone, the lease should be reviewed with a competently trained lawyer specializing in commercial real estate.
The second is the business perspective. The lease is the ongoing contract between the landlord and the tenant, so it must cover how that relationship will work over the time of the lease. This is a completely separate way of looking at the lease as compared to the legal point of view. Therefore, you need a commercial lease expert, such as our firm, to show you the business implications of the lease and how to properly negotiate the lease to protect your interests.
I wrote about the importance of carefully crafting a retail use clause recently. Today, I read that greeting card and stationary company Paperchase has entered into wholesaling arrangements with Staples, an office supply company. This marks an expansion of the Staples use from office necessities to appealing to the general public by introducing greeting cards into their mix.
Paperchase also announced shop in shop concessions in the Hudson Bay stores in Canada and a desire to do the same in the USA.
Other uses such as grocery stores, pharmacies and many others are expanding their merchandising concepts as consumer’s tastes change and they grapple with omnichannel competition.
All this points to the need for carefully crafted restrictive use wording. Admittedly, I hate restrictive use clauses in leases when working for landlords; and attempt to get them in tenant leases when working with occupiers.
When working for tenants I start with getting an exclusivity clause that says something along the line of the following: “The Landlord won’t suffer or permit any other tenant to sell or permit to be sold any product, service or merchandise that conflicts with the Tenant’s use.” Please understand that I am not a lawyer and I’m not offering legal advice by providing this wording so please discuss this article with your lawyer and obtain the best wording for your circumstance.
But why do I start with that type of wording? The concept I want to get across in the negotiation is a true broad exclusivity within the property. Going back to the Staples/ Paperchase situation, let’s assume my client operated a card store. When my ficticous client entered into the lease, Staples was not in the greeting card business. Now they are a direct and large competitor.
While a prudent landlord would exclude large box stores, multi-department stores and anchors from any exclusivity restrictions; I’ve seen many leases that don’t exclude them.
From the landlord’s perspective, this type of wording is very dangerous. It is very difficult to manage a property with this type of wording, particularly when it is tied to poorly structured use clauses. For example, how would the landlord tell Staples, a national tenant, that they couldn’t sell greeting cards in this one specific location? If the landlord did nothing and my example greeting card tenant raised the exclusivity issue, then the Landlord has problems with this tenant. It creates an untenable situation.
The answer to the landlord’s conundrum is a well crafted use clause for each and every tenant, an exclusion to any restrictive covenants as noted above and wording in any granted exclusivities that is limited to the landlord leasing space to a competitor.
To learn more about this topic and how I can benefit your investments contact the author to arrange a 30-minute, no-obligation consultation.
Peter D. Morris is the principal consultant at Greenstead Consulting Group and an acknowledged expert of income-producing real estate.
He has a unique perspective gained from multiple roles in real estate including consulting, training, acquisition/disposition, leasing, asset management, development and property/facilities management as well as being the Chief Operating Officer of a publicly traded real estate company. He has a depth of knowledge in most real estate asset classes including multi-unit residential, mixed-use, retail, office, industrial and hospitality. Peter has worked with top companies such as Cadillac Fairview, Brookfield Properties, Marathon Realty, Grosvenor Americas and Colliers International. He also brings a global perspective having worked in 8 different countries including Canada, the USA, as well as countries in Asia, South America and the Middle East.
The owner of Whistler Creekside Village has engaged BC based Greenstead Consulting Group to assist in developing a repositioning and remerchandising plan for the property to better address the needs of both residents and visitors to Whistler.
“The opportunity arose to make significant and, we believe, positive changes to the offering we present at Creekside Village”, said Ryan Bell, the Director of Asset Management for the owner, CNL Lifestyle Properties, Inc. “A number of leases expired and we made the conscious decision to develop a scheme to replace those uses to better compliment our existing tenants such as Creekside Market, BC Liquor, Scotiabank and Starbucks, to name a few.
After an internal planning session, Greenstead Consulting Group was hired to refine a repositioning and merchandising plan for the property.
According to Greenstead founder, Peter Morris, Creekside Village is ideally suited to provide a different experience to the common brand name retailers found elsewhere in Whistler. He suggested that Creekside Village will be seeking tenants that are unique and/or offer something quintessentially Canadian, resulting in a ‘must visit’ reason at Creekside Village.
“The better quality hotel accommodations adjacent the property cater to an affluent, luxury family clientele who appreciate the opportunity to uncover something new and different as compared to the mass chain stores”, said Morris.
Morris stated that the preferred merchandise mix includes a signature restaurant; a salon/spa; unique art and gift gallery; quick service food outlets, with either a healthy food option or a menu of wide appeal; resort or adventure wear and a lounge, craft brew pub, wine bar or speak-easy atmosphere location to cater to those wanting somewhere to go in the evening.
According to the recently produced Whistler Chamber of Commerce Commercial Lease Report that provides a snapshot of current rates and operating costs rents in the Creekside Village area are less than in the Village Square, where they can be as high as $125 per square foot according to the report. Morris believes this is one reason his client will be able to find the right tenants.
“Even with the high rents demanded in Village Square, tenants still have to advertise to attract customers and the combined costs compound the risks of doing business in Whistler. Alternatively, if you locate your ‘must visit’ type of concept in a property with less rent, you can still spend on advertising to attract customers and the overall risk is reduced,” Morris said.
The following two articles were recently printed in the Small Business BC publication.
More landlords are adopting reserve funds, also known as Sinking Funds, in their management practices to attend to future capital expenses and major repairs. These may be established for items such as Heating, Ventilation, Air Conditioning (HVAC) system replacements and major roof, envelope or parking lot repairs. Effectively the sinking or reserve fund is money collected from the tenants and set aside for these future requirements so the landlord is not out of pocket in the funding of those at that time. This is separate and distinct from a capital fund an investor may fund from the property profit.
However, unwary investors often miss the transfer of these sinking or reserve funds from the vendor to the purchaser as part of the property sale transaction and the closing adjustments. It is certainly incumbent on the purchaser to determine if the vendor has these types of funds during the due diligence process and to ensure that they are including in the closing adjustments.
Several issues can arise if the transfer of these funds is missed. The most important one is the financial risk assumed by the purchaser when it comes time to complete the replacement or repair. Many times the lease will exclude the amortization of items covered by the sinking fund, since the fund represents a form of prepayment toward those costs. This will mean the new landlord may not be able to recover these costs, directly affecting the property Net Operating Income and the overall property value. Failing this type of exclusion wording in the lease, tenants would still object to any form of amortization or recapture of the expense without accounting for their past contributions to the reserve fund. Aside from the financial impact, the landlord may be faced with a tenant relation problem too.
A second issue is that the missed transfer may become a legacy problem when the purchaser subsequently sells the property. The new purchaser will not want to inherit the issues we are discussing in this article.
The purchaser must determine what fund, or funds, exist and the current balance of each fund (at closing) to be transferred. This, in itself, can seem like a job for Sherlock Holmes, depending on how the funds were collected and accounted for in the landlord’s books. To compound the issue, many purchase and sale agreements are negotiated to limit the time frame of the financial statements to be provided by the vendor (such as three or five years). It is for this reason we counsel clients to have a separate line item in the list of due diligence production documents for sinking and reserve funds that is not time limited. It calls out the need to disclose all of these funds.
In addition, purchasers should be aware of the many different types of reserve funds another landlord may establish. For example, the landlord may have created a reserve fund for a pending insurance claim deductible or litigation expectation. It pays to seek out all potential funds by inquiring with the vendor and scouring the lease for any wording that could allow the landlord to establish these funds.
It is also important when examining the leases in due diligence to note if and when the funds may have started or ended. In some (albeit rare) cases, a landlord may have stopped using a sinking fund and now excludes fund payments in their current leases. But, if a tenant has been in the property over a number of terms and lease editions, you may uncover a dormant fund contribution. It is important to determine what became of a dormant fund; otherwise, at the very least, the purchaser could have a tenant relation issue on their hands in the future.
We use our collective expertise at the Greenstead Consulting Group to assist landlords improve the value of their commercial real estate investments. We can help you. Contact us today.
It doesn’t take a business degree to know that to improve operating return at the corporate or property level means revenues must increase, expenses must decrease or a combination of the two. Aside from the obvious question of occupancy, we’ll explore some other aspects to improving returns.
At the company/enterprise level removing waste, eliminating redundancy and cost containment are all common sense ways to add value. As is a serious review of the debt structure and financing options. Another avenue to explore is to examine the company’s sacred cows – policies and processes that have been implemented over time. Some may no longer be needed or the methodology may be outdated. Challenging the status quo may reveal hidden opportunities. For example, I’ve long advocated that the way property management services are delivered to both the owners of property and their tenants is completely outdated and is actually hurting tenant renewal rates and property returns. Moreover, by realigning staff duties in the manner I have suggested, management companies can reduce their overall costs of service delivery by as much as 15%.
The way leases are structured and the mechanics of them can also improve value. In the early 1980’s Cadillac Fairview, a leading mall developer and owner, instituted an across the board HVAC basic charge. It was a sinking fund established to pay for the replacement of roof top units, air handlers, central plant equipment, etc. The concept was drafted into the company’s standard lease form and used for all future new leases. There are many other items in the way a lease is structured that can have a positive impact on returns; such as how renewal options are treated, how the space is used and measured, and how amortization and depreciation costs are handled.
For example, many landlords provide for a recovery of amortization in their leases, but few also specifically note that the landlord should also recover an interest cost on the amortization. When explaining why the landlord should receive an interest component to the amortization, I liken the capitalized (and then amortized expense) to a loan to the common area to the benefit of the tenants. If a tenant pushes back I provide this example.
“Lets assume the landlord will need to replace the roof membrane, the cost of which is, say, $250,000. This is a recoverable expense, but the tenant doesn’t want to be charged with their portion of a $250,000 expense in one year; so the expense is repaid through amortization of, say 10 years. The landlord is out of pocket the initial expense and won’t recover that expense for 10 years. Effectively, the landlord is lending the tenants the $250,000, and just as with any loan the tenants should compensate the landlord for that through interest.”
These are just a few areas of more than a dozen lease refinements I’ve developed for companies I’ve worked with over the years.
One of the biggest lifts in return and value is to change the way lease rates are determined. Many owners and leasing agents for shopping centers still rely on comparable analysis to be the sole determiner of the basic rent. This is a mistake. Rent should be a function of sales – not to be confused with the concept of percentage rent. Using sales as the method for determining base or minimum rent it is possible to create a rent structure that is as much as 35% above comparable rents, based on my personal experience. There is a specific methodology to achieve this. It starts by understanding the market potential in the trade area served and relies on obtaining sales information from each tenant, even if they do not pay percentage rent.
There are a number of opportunities at the property level too. For example, the Greenstead Consulting Group has developed and implemented over 20 different ancillary income streams at the property level. Some produced significant revenues while others did not; but collectively the effect was the same as adding two or three rentable store spaces to the property– without the infrastructure costs.
Another area of additional income from retail properties is through creative densification. The land-mass for retail properties is very large compared to the vertical nature of office buildings. Much of this is dictated by parking ratios mandated in zoning requirements. The typical 5 stalls per thousand square feet of leasable area has been in use for more than 30 years, yet the nature of retail has changed dramatically over the same time. In the 1970’s evening shopping was usually confined to one or two nights a week and virtually no one shopped on Sundays. That parking ratio may have made sense then but does it make sense with the expanded shopping patterns and channels of today?
We convinced a municipal council to adopt a new micro stall designation to accommodate the new ultra small cars, such as the Smart car, and to include designated motorcycle parking as part of the overall parking ratio. Decreasing the average stall size allows for more stalls on the same piece of land. Even with the existing stall ratio, the increase in the number of stalls permits further development on the site. In another densification program increased the site densification that resulted in an $8 Million lift in the property value because the site development could be easily intensified. This improvement came with no additional infrastructure cost, such as a parking structure.
On the expense side of the ledger there are many opportunities to reduce expenses. One that is not widely practiced but that can pay significant dividends is lean maintenance, a concept borrowed from lean manufacturing practices. In lean maintenance there is an understanding that some common maintenance practices have diminished value through the lifecycle of the physical plant. Correcting this is the same as reducing the waste that was inherent in older manufacturing processes.
Repositioning and remodelling can have a positive impact on the revenue and expense of a property. Curb appeal determines customer attraction and what tenants perceive as a desirable location. So we never advocate trimming expenses to the point of harming the impression of the property. This includes capital expenses. However, the timing of the program is critical to obtain the best returns. It is also important to conduct a complete cost benefit analysis and judicious value engineering. Sometimes, just as in theatrical staging, some inexpensive changes can have a dramatic impact on the look and perception of a property.
Improving returns and value is what we do best. Contact us to learn how to transform your investment returns in retail real estate.
Many people believe that a negotiation must arrive at a Win/Win conclusion. The concept of attempting to reach that position is misplaced and can actually hurt the process. Let me explain as it applies to real estate leasing, without meaning to simplify the process in attempting to address this in just a few words.
After the basic financial terms have been agreed the lease negotiation is all about the transfer of the business risk from either the landlord to the occupier or vice versa. One party wants the other to assume some portion – or all – the risk associated with the lease. The negotiation concludes only when both parties have become comfortable with the amount of risk they are willing to assume. This involves compromise and a certain amount of ‘betting’ that the risks assumed don’t play out or outweigh the potential benefits. In short, to reach agreement each side has to give something.
Giving something up isn’t synonymous with a WIN, as both parties to the negotiation start with their ideal position of wanting the other party to assume the risk. In essence, both leave the negotiating table in a position less than their ideal. Hardly a “Win/Win” concept.
However, here is the real “Win/Win” in a lease negotiation. It isn’t the conclusion that should be the “Win/Win” – because it can’t be as we’ve just learned. It is in the negotiating process itself that the two sides should strive for a “Win/Win”.
In our lease training programs for landlords and occupiers, we note that every successful lease negotiation has to have 5 criteria. The first is a positive experience. Both parties will remember the negotiating experience long after they have forgotten the financial fine points of the deal. They will remember the feeling that it was fair, or pleasant, or that they were taken advantage of, bullied or generally negative.
As a case in point, many car dealers have switched to a no-haggle pricing strategy. Why? Because car buyers typically felt mistreated in the price negotiating process and that left such a bad taste in their mouth that it may affect where they buy their next car.
A person who is having a positive negotiating experience will tend to be more open to sharing information and really listening to counter points to a discussion. Conversely, a person who is having a more negative experience may tend to dig in their heals, be closed to offering information for fear it will further erode their position, etc.
The impact will be a longer more adversarial negotiation as well as the potential of the lease only lasting the one term, if it is completed at all.
As a person seeking the best outcome in the lease negotiation, you need to mitigate risk. How you accomplish that through the experience will determine how successful you are.
To learn more about how to create a positive negotiating experience while still controlling the negotiation, or the other four essential criteria needed for a successful lease negotiation, contact me at email@example.com