Leasehold, Tenant, and Build-Out Improvements in CRE

Three terms which are similar, but different

There’s an old song, made most popular by an Ella Fitzgerald/Louis Armstrong duet, in which the singers lament the differences in how they each pronounce the same words differently. One says “to-may-to,” while the other says “to-mah-to.” As they compare their words, the two must decide if they’re going to overlook their differences or call the whole thing off.

It’s sort of the same thing with leasehold, tenant, and build-out improvements—three terms that kind of mean the same thing. Pretty much, that is. There are subtle differences, and it’s important for landlords and tenants to understand the nuances. Because, like Ella and Louis, no one wants to call the whole thing off.

A look at the similarities between leasehold, tenant, and build-out improvements

In commercial leases, the three terms are industry-specific ways of describing the same idea: improvements and modifications to a structure in order to prepare for a new tenant.

• “Leasehold improvements” is the accounting term.
• “Tenant improvements” are from the world of commercial real estate.
• “Build-out” is the term in the construction industry.

The scope of these improvements is determined by several factors, including if space was previously occupied, the age of the building, and how closely aligned the previous tenant’s business is to that of the new tenant. Modifications can include everything from lighting and plumbing systems to security and Wi-Fi to reconfiguring the space inside and out.

A look at the differences

The differences between the terms become more apparent when examining which party—landlord or tenant or both—is overseeing the work and who will be paying for the improvements. For both parties, this is a critical part of the lease negotiation process and the secret is in the details.

To assist both parties, there are several standard tools at their disposal.

• Tenant Improvement Allowance (TIA): In this lease concession, the landlord will provide a specific amount of money to be used as an allowance by the tenant to make any necessary modifications. The tenant will oversee the project.
  
• Rent Discount: Very often, landlords will agree to free rent or a discounted rent, with the understanding that the tenant will apply the savings to the remodeling project. Again, the tenant oversees the project.
  
• Building Standard Allowance: The landlord puts together an improvement package offering the tenant a choice of modification options, such as three paint colors for the walls. The landlord oversees the project, but the tenant is responsible for any improvements not included in the offered package.
  
• Turnkey: The tenant provides the landlord with a design plan and estimated costs. The landlord agrees to pay for the improvements and oversees the work.

Preparing for the inevitable bumps in the road

Although there is a definite excitement to moving into a newly remodeled space, it’s important to not get distracted by that excitement. Problems will arise. Delays will occur. To that end, it’s critical that both parties fully understand the tenant improvement project, the costs, and the penalties if either party is unable to fulfill its obligation.

One of the easiest preventative measures is to attach a detailed improvement plan to the lease, including a description of building-standard materials and finishes. At the same time, there must also be a timeline for not only the progression of the project but also a date when work is to be completed—and the consequences, should either party miss that deadline.

An option for tenants and landlords

At the end of the day, it doesn’t matter how one says “tomato.” It’s more important to work with a team that is as skilled with the subtle nuances of tenant improvement provisions as it is with the details that are designed to protect the financial assets and business goals of landlords and tenants. Morris Southeast Group is that team.

To learn more about owner and tenant representation and what Morris Southeast Group can do for you, call us at 954.474.1776. You can also reach Ken Morris directly at 954.240.4400 or via email at kenmorris@morrissegroup.com.

Landlord can be another word for mediator

When most landlords and developers decided to enter the CRE marketplace, they probably had lots of reasons. Perhaps it was the chance to give back to a particular community, or to reap the rewards of a strong investment, or to provide a high-quality service that others can enjoy. Hardly any of them, though, thought that CRE would be an excellent opportunity to be a mediator.

Nevertheless, that’s exactly what they’re called to be when tenants are at war with one another. As more commercial tenants seek shared spaces and as retail tenants amp up competition for a population adapting to e-commerce, tenant conflicts have expanded beyond the multi-family housing arena.

And adopting some proactive solutions not only heads off potential conflict between tenants, it also comes in handy when a landlord has to take a firm stance.

A strong lease is the number-one tool

To head off any potential conflicts between tenants, a strong lease can set the proper tone from the beginning—especially in an environment where several tenants may be sharing everything, from adjoining walls and amenities to kitchens and parking.

The lease is the landlord’s chance to spell out specific rules that address two of the top concerns residential and commercial tenants have: safety and a peaceful environment. This is a chance to define expectations for tenant behavior and consequences for making threats against or harassing other tenants, as well as violating noise restrictions.

Get the balance right

Where commercial properties are concerned, especially those that house multiple tenants, landlords often try to achieve a sense of balance. This effort, though, has become more complicated in light of a sharing economy, where everything from offices to parking spaces are being used by more than one tenant.

When looking for new commercial tenants, it’s critical to have a full understanding of their business. This includes hours of operation (so that shared parking is achievable) to demographics (so that a yoga studio with evening classes is not next to a music venue) to not filling a complex with high-use tenants (so that customers have trouble parking, which results in their avoiding the complex … which results in a loss of revenue for tenants and the owner).

Develop a resolution policy

It’s especially helpful for landlords and owners to have a procedure to follow when mediating disputes. This guarantees that all tenants and their complaints are handled equally.

• Consider creating a welcome package for tenants. This information can include basic information about living or working in a specific property, but it’s also a chance for the landlord to again spell out the expectations of good tenant behavior. This can include suggestions on how tenants can appropriately solve a conflict with another tenant on his/her own, as well as steps to take if the matter should escalate.
  
  
• The welcome package should include instructions on how to file a complaint against another tenant with the landlord. Forms for such a complaint document can be included, with specific instructions on how and when to contact the landlord, owner, or property manager.
  
  
• As the person receiving the complaint, there is a tremendous responsibility to respond in a timely manner. The tenant making the complaint wants to know that his or her concerns have been heard. This can be done with a return phone call, email, or letter to assure the tenant that you will investigate and that you take lease-violating behavior seriously. Each complaint, no matter how trivial it may seem, must be taken seriously.
  
  
• At the same time, the landlord should contact the tenant named in the dispute to inform him or her of the situation. While the source of the complaint should remain confidential, this call is the perfect time to remind the tenant that violations of the lease—the landlord’s number-one tool—are grounds for eviction. A written summary of this interaction should be sent to the tenant in question.
  
  
• It cannot be said enough times: document everything. This includes the initial complaint—using the complaint form in the welcome package or an online format—and logs and summaries of conversations and steps taken. This protects the landlord should the infraction result in an eviction and/or if there is future legal action as a result of this dispute.
  
  
• Follow up with the tenant who made the complaint to ensure that the situation was resolved.
  
  
• It may be necessary to conduct a face-to-face mediation with both parties. If this is the case, it is imperative for the landlord to remain professional and impartial. Both parties should air their grievances, and the landlord can rephrase these to help the parties understand that their concerns have been heard. The landlord can then produce documentation, such as the signed lease (there’s that number-one tool again) with the specific expectations for a safe and peaceful environment and the consequences for violating those expectations.

Being a commercial or residential landlord involves the art of mediation

Whether you’re a tenant or a landlord, being part of a dispute—either as a complainant or a mediator—can be messy, time consuming, and complicated. Morris Southeast Group’s property management services can assist in the mediation process. In addition, our tenant and owner representation skill set can help match your vision with the right property to prevent potential conflicts. To learn more about what Morris Southeast Group can do for you, call us at 954.474.1776. You can also reach Ken Morris directly at 954.240.4400 or via email at kenmorris@morrissegroup.com

Doing your homework is part of the deal.

When most of us were in elementary school, little did we realize that each time a teacher or a parent lectured us on the importance of doing homework, they were actually preparing us for … commercial real estate. Due diligence — really, just an adult word for homework — is an essential part of the commercial transaction process.

And just like the educational — or tearful, weekday-afternoon — debate over homework, many people wonder how much due diligence is enough? Perhaps, the best way to respond is with another question: Can there ever be too much due diligence?

Due diligence is your time

While true due diligence happens long before a transaction is started or a property is even chosen, in the simplest and most-conventional terms, due diligence is the process that occurs during the time period between a buyer signing a contract and making the decision to move forward with the purchase. It’s during this time that the buyer has the chance to conduct a full review of all data that relates to the property. The more thorough the due diligence process, the more informed the buyer will be in deciding to complete or cancel the purchase.

The actual time period fluctuates in accordance with the complexity of the transaction, however. And it’s possible to incorporate a due diligence checklist into the sales contract with a stipulation that the process will commence once the seller produces the last of the requested documents.

The key elements of due diligence

When it comes to creating a due diligence checklist, there are five basic areas that need to be addressed. These, in turn, can be adjusted to meet the needs of the transaction, the complexity of the deal, and other reasonable items that the buyer may require to make an informed decision.

1. Probably the most obvious of the data to gather is information on the property. This includes: legal and physical descriptions, property type, current use, zoning, parking, the most recent title policy or title commitment, blueprints, engineering plans, recent surveys, easements, etc. This information is then cross-checked with public data. Any discrepancies should be thoroughly investigated. Be wary of any information that cannot be verified independently.

• The guts of the property are just as important, if not more so, than its outer appearance. All systems — structural, electrical, plumbing, drainage, security, fire protection, elevator, gas, and heating and cooling — need to be inspected and evaluated. This is also a good time to understand how utilities are delivered and metered, as well as service-agreement terms.

• When it comes to inspections, it’s an excellent idea to leave no stone unturned. It may be necessary, for example, to work with pest inspectors, engineers, and environmental consultants — to name a few. Additionally, it may be necessary to review building permits, violations, certificates of occupancy, and court cases.
  
• If the property has one or more tenants, it will be necessary to gather all legal contracts made between that party and the seller. In addition to lease terms, it’s essential to review security deposits, rent schedules, utility obligations, and any sweetheart clauses, such as a lease extension deal. 
  
  
• Finally, it’s time to talk about the financial health of the property and/or the seller. Information here includes copies of the three most recent years’ tax statements, assessments, property income and expenses, insurance policies and claims, and pending litigation against the property or the seller.

Due diligence is a team effort

Embarking on the due diligence process can be a daunting and overwhelming task. Failure to gather all information by the due diligence deadline can result in the buyer losing his or her deposit if they find something that requires them to back out of the deal.

Fortunately, you there are experts that can help you with this process. In fact, many other experts recommend working with an experienced team that can compile the information, present it, and then advise on the next step. Morris Southeast Group is that team. To learn more about what Morris Southeast Group can do for you, call us at 954.474.1776. You can also reach Ken Morris directly at 954.240.4400 or via email at kenmorris@morrissegroup.com.

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Proactive solutions to help CRE owners be prepared for a gas leak emergency

The humidity was thick this past July 6, very typical of summer weather in steamy South Florida. The combination of heat and a Fourth of July holiday weekend meant that business was a little slow in a Plantation, FL, shopping plaza. Fitness buffs were still getting in their morning workouts, however, and coffee drinkers were enjoying their lattes. And according to authorities, someone opened a natural gas valve in a closed pizzeria where the tenant had vacated the premises in December 2017.

Over the course of four hours, more businesses opened, parking spaces were occupied, and natural gas filled the space of the closed pizzeria. When the air conditioner clicked on, an electrical spark ignited the gas, creating an explosion that blew out walls, shattered windows, and crumbled ceilings. Debris rained down on customers inside of the various retail spaces, as well as on those walking through the parking lot. An ordinary summer day in a shopping plaza was anything but.

The explosion was a wake-up call

Sadly, 22 people were injured. In addition to the injured, the explosion has had a tremendous impact on the surrounding commercial real estate. Within days, many of the buildings impacted were determined to be unsafe. To date, only 8 of 25 that operated prior to the explosion have been able to re-open, and some customers have expressed fear about returning to the plaza. Owners of the shopping center, while vowing to rebuild, are facing huge logistical challenges as they work with local building officials and engineers to create a recovery/rebuild timeline.

In many ways, the consequences of the explosion can be felt very far from South Florida. For landlords and owners around the country, it was a wake-up call to take a look at their own properties, operating systems, and responsibilities.

Four ways a building owner can be pro-active

When it comes to owning and/or managing commercial real estate, it’s imperative for owners to protect their tenants, visitors, and investment. That’s common sense, pure and simple. To accomplish this, though, there are several proactive steps to take today that could very well help you tomorrow:

• As part of the lease process, the landlord/owner is responsible for minimizing risk and liability. This means regularly scheduled inspections of key systems: locks on doors and windows, security systems and cameras, roofing, electrical and heating units, and smoke and fire alarms.
  
  
• Similarly, leases also require the landlord/owner to maintain these same key operating systems and common areas, as well as to make repairs in a prompt manner. Adhering to a strong standard of maintenance enhances other areas of management as well, such as tenant, municipality, and insurance relationships.
  
  
• Speaking of insurance, it’s a good idea to conduct regular reviews of insurance coverage. Generally speaking, CRE insurance has two components: property—which covers the building and its contents from fire, theft, and natural disasters—and liability—which covers bodily injury sustained by third parties on your property. (In addition, owners may also want to consider errors and omission insurance (professional liability insurance) for protection from mistakes or injuries that are incurred as a result of improperly rendering professional services.) Tenants, meanwhile, will also have their own insurance policies.

• Not enough can be said about developing and maintaining strong relationships between owners and tenants. As part of this equation, owners and/or property managers are well advised to develop an Emergency Action Plan and to provide regular emergency preparedness training for tenants. In addition to preparing for a general crisis, such as neighborhood fires or hurricanes, comprehensive emergency preparedness training can help save lives during a property-specific event, such as a mass shooting on the premises.

Reaching out for assistance

Preparing for what may or may not happen can be a daunting—albeit necessary—task, and it’s not something that you need to do alone. The team at Morris Southeast Group can assist you in reviewing insurance coverage and lease terms, and our property management services stay on top of scheduling maintenance and repairs, as well as coordinating emergency preparedness training. To learn more about what Morris Southeast Group can do for you, call us at 954.474.1776. You can also reach Ken Morris directly at 954.240.4400 or via email at kenmorris@morrissegroup.com.