I love the shows Pawn Stars, American Pickers and Mysteries at the Museum. With these shows, they find an item that interests them, authenticate it and then give a bit of history on the piece. As geeky as it may sound, there can be identifiable histories to leases and lease language.

Did you ever pick up a lease and you have to turn it sideways to read the inserts? If you have one of those, or a lease that references a porters wage index instead of the consumer price index, it likely is for a property in New York. If it is not, the attorney that negotiated it probably worked in New York at some time.

Does you lease have a carryforward of any excess share of taxes or CAM over a cap? The leasing agent probably came from one of two major mall developers. How about an inserted, photo copied page addressing exclusions from gross sales? Many of us came name the developer.

A few years back, we were working on a mall portfolio acquisition. After abstracting the first few leases, we had joked that you could tell that the seller did not participate in ICSC events because the leases that were then being negotiated were similar to the ones that they had executed 30-40 years earlier – they never witnessed and benefitted from the evolution of lease language.

This week, we had a lease where the tax denominator had a handful of excluded areas and, contrary to industry standard, taxes were defined as “without deducting contributions from excluded areas.” We knew exactly which law firm had drafted the lease. Sure enough, the notice address confirmed it.

I guess in their own sort of survival of the fittest way, leases and lease language have evolved over the years to adapt to the then-current circumstances. Co-working and e-commerce, even things like autonomous vehicles, will likely be bring more big changes to lease language in the near future!

There are a few percentage rent calculation issues that make me happy (from a landlord perspective. If you are a tenant, you hate these!). True partial lease years – where a sales for a portion of a year are compared to the breakpoint for a portion of the year, and the tenant pays sales on the excess. National and regional tenants typically no longer have true partial years, negotiating the extended partial (12 months of sales from commencement over a 12 month breakpoint, calculate any percentage rent on the excess and then prorate the result). True partials typically result in much higher percentage rent, but since the tenant is there for the busiest months of the year and did not have to pay rents during the slower months, it actually is a fair method.

Next is when there is a change is percentage rent rates during the year. While breakpoints can be blended when there are changes mid lease year (and no change in percentage rent rates), percentage rent rates cannot be blended. Therefore, you end up with two partial lease years.

Another is where there is an abatement of rent and the boilerplate breakpoint language remains – if minimum rent is abated, the breakpoint shall likewise be abated. Think about a lease commencing 1/1 and the tenant has 9 months of abated minimum rent. If the lease year ends 12/31, you have 12 months of sales over a three month breakpoint. Landlord’s recapture a good bit of that free rent. Along those same lines, when, for one reason or another, a tenant goes to percentage in lieu for a portion of the year, that has the same exact effect as minimum rent abating and the breakpoint likewise abating.

But, there is one percentage rent method that outshines them all (again, from a landlord perspective!) – monthly breakpoints with no annual reconciliations. These are few and far between, but unlike unicorns, they really do exist. We have actually worked on properties where the majority of tenants have this requirement. In these cases, in months where the tenant is over the breakpoint, the tenant pays percentage rent, but there is no annual reconciliation, meaning the tenant’s percentage rent is not reduced for months when sales are less than the breakpoint. As an example, a tenant pays 5% of sales over its breakpoint of $100,000 per month (the equivalent of $1,200,000 per year). In 9 months, the sales are $80,000. In three months, the sales are $150,000. For the three months of $150,000 sales, the tenant pays $2,500 per month, or $7,500 for the year ($150,000-$100,000= $50,000 x 5% = $2,500; $2,500 x 3 = $7,500. For the other months, the tenant has sales less than the breakpoint and they pay no percentage rent. They paid $7,500. Had there been an annual reconciliation, the tenant would have not have paid percentage rent ($80,000 x 9 = $720,000; $150,000 x 3 = $450,000; $450,000 + 720,000 = 1,170,000; sales would then be less than the $1,200,000 annual breakpoint).

This is a tame example. We have seen tens of thousands of dollars due from tenants when there are extreme monthly variances, where percentage rent may not have been due if an annual reconciliation was required.

They are few and far between, but these percentage rent unicorns will provide a material boost to your cash flow if you find one.

Since the 1970s, it has not been common to see certain types of tenants in regional malls as department stores enforced certain types of use restrictions that existed in their leases (often to protect parking).  However, as closures of former destination tenants have occurred and regional malls are becoming the community centers and all-in-one centers they once were, we are seeing a resurgence of these categories back into regional malls. As it has been so long that mall developers have had to deal with these categories, today’s blog addresses a few of the sales-related issues in those categories that can have a material impact on percentage rent.

Health Clubs – Most gross sales definitions include sales, whether on cash or credit. When an individual signs a contract for a year, paid monthly, the sale is for the entire amount. If the customer does not follow through with the contract, it is a bad debt. Unless a health club has specifically negotiated a deduction for bad debts, the full amount of the sale must be included. Also, if a health club allows personal trainers to operate out of their facility, the revenues generated by those personal trainers must also be included.

Supermarkets – There are quite a few gross sales issues related to supermarkets. Manufacturers’ coupons (like the ones you get in the Sunday paper) are reimbursed by the manufacturer. Therefore, the use of these coupon should not decrease the sale (whereas store coupons are a true discount by the supermarket chain and are not reimbursed). Slotting fees are significant fees paid by manufacturers for shelf space in supermarkets. Often, the slotting fees can be more than the profits supermarkets realize on the actual sale of product. Consideration must be given to the fact that supermarkets often sell lottery tickets. Depending upon the lease language, it is usually the commission realized on the sale of lottery tickets that must be included rather than the sale of the tickets itself. However, it is possible that the sale itself should be included. Among the many other considerations are whether the sales of goods and services by subtenants or the rents paid by those tenants should be included in reported gross sales, and whether the tenant specifically negotiates the exclusion of alcohol or tobacco sales from reported gross sales.

Theaters – Theaters will often try to negotiate either one of their two biggest sources of revenues from reported gross sales – tickets sales or concessions. Theaters are charged a material portion of their ticket sales as royalties, sometimes approaching 100% for blockbuster/Oscar winners. If the theater can make a good case for the exclusion of a specific type of revenue, the breakpoint and percentage rent rate should be adjusted appropriately (no longer a natural breakpoint).

One other quick note – There was an article in Globe Street earlier this week about Amazon being surprised by some of the restrictions that they were discovering in their Whole Foods’ leases that are affecting what Amazon could sell in Whole Foods (due to other big boxes’ exclusives), and specific restrictions against Amazon’s locker delivery system. Many supermarket leases are excepted from other big box exclusives or allow the incidental (typically defined as less than 5% of sales or less than 500 sf) sales of restricted goods, so these issues may be fewer and farther between than the article may have presented. However, there is a sales/percentage rent issue not addressed in the article. Typically, gross sales is defined as sales “in, at, on or from” the demised premises. If Amazon does install the lockers in their own Whole Foods stores, the “locker-delivered” sale will have occurred “from” the demised premises and will, therefore, have to be reported as part of reported gross sales. A potential boon for landlords!