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Realizing the intended benefit of a tax abatement

It is not uncommon for a municipality to work with a property owner to them achieve some mutually beneficial goal – usually because the project might not otherwise be feasible without some sort of public assistance. Among the reasons a municipality may be considering the inventive,, they may be doing it to bring new jobs, protect existing jobs, to help spark a development corridor, or to prevent or reverse a property from becoming blighted. The assistance can come in many different forms, one of which is a tax abatement.

If the intent is for the abatement to benefit the landlord so that it can be used to help finance a project, the leases have to be worded in such a way or the landlord may not realize the benefit.

A simple example would be if a property owner was being billed $500,000 in real estate taxes and the tenants of the property pay a full prorata share of taxes. The landlord pays $500,000 in taxes, bill the tenants $500,000, and (if they are at 100% reimbursement) collect $500,000 from those same tenants. If the municipality grants the landlord a tax abatement so that the landlord can use the $500,000 per year towards a project, without specific language in the lease, the benefit flows to the tenants, not to the landlord. The landlord would receive a tax bill for $0, and then could not bill or collect any taxes from the tenants. Therefore, the tenants receive the benefit of the tax abatement.

However, the addition of a few lines in the standard lease form can ensure that the landlord receives the intended benefit. A simplification of the language would read something to the effect of:

「If the property is the beneficiary of any real estate tax abatement, the tenant will pay its share of taxes absent such abatement.」

With this language, the landlord would receive a tax bill of $0, but would bill the tenants their share of taxes 「absent such abatement,」 or $500,000. The landlord then has collected $500,000 with a $0 tax bill, and the funds are available for the project.

I have seen one 「workaround」 by a landlord and municipality when this language did not exist in the lease. A service contract was negotiated for the period which would have otherwise been the abatement period. The service contract was where the property provided services, including jobs and education fairs, community events and other 「services」 which the property was already 「providing.」 In that case, using our same numbers, the landlord was billed $500,000 by the municipality and was then able to bill the full $500,000 to the tenants. Upon receipt of the payment by the landlord, the municipality then made its service payment to the landlord. The landlord then had the $500,000 per year available for the intended project.

With more B and C properties losing anchors, it is likely we will see the need for more public/private partnerships to redevelop properties to thrive in new ways. Lease language must be considered for these partnerships to work.

“…if the end of the world is imminent …”

Yes. This language exists in some leases. The language typically states that if the end of the world is imminent, the landlord has the right to accelerate rents for the remainder of the term.

There are still a few hours left to check your leases for this language before the eclipse arrives today.

Happy eclipse viewing today. And, good luck trying to collect with that clause!

We will be back to a regular lease administration post next week. Today, I am in Tennessee to see the eclipse!

Don’t overcomplicate the lease language

Every few weeks, someone in the office will let out a scream of frustration. The frustration comes from reading lease language that is so involved, but could have been accomplished with incredibly simple lease language.

For example, it is fairly common to see Consumer Price Index (CPI) increases applied to rents, or used as caps for certain reimbursable expenses in a lease. Applying a CPI increase is fairly simple and straightforward, but there are hundreds of variations of the CPI – for all Urban Consumers (CPI-U); for Urban Wage Earners and Clerical Workers and Wage Earners (CPI-W); either one of the using a 1982-84=100 base or a 1967=100 base, or even a 1957=100 base; any one of those for a specific city; any one of those for specific items, or excluding specific items. Along with those increases, it is common to have a negotiated cap on the increase – say 3%. Often, that cap is negotiated to be non-cumulative rather than cumulative. Sometimes there is language that states if the increase is greater than the cap in any given year, the amount over the cap can be carried forward to a future year when the increase is less than the cap. Sometimes, there are minimum increases applied in addition to the cap.

So, if you find yourself writing or negotiating a lease clause where

「the tenant pays a prorate share of CAM based upon the leased area of the shopping center, calculated on a weighted average basis, excluding major tenants greater than 25,000 sf and any tenant above or below ground level, where controllable costs are capped by 5% per year with any excess being carried forward to a future year, and where the first year CAM costs (including both controllable and uncontrollable costs) are capped at $2.00/sf, with the overall cap being increased by the CPI-W, 82-84=100 for New York, with a maximum increase of 3.5% and a minimum increase of 2.5%, also giving the tenant the right to audit CAM」

Do yourself (and your lease administration, lease accounting, asset management, billings and collections staff) a favor, and just simplify it to:

Tenant shall pay $2.00/sf for CAM, increased by 3% each 1/1 starting 1/1/18.

Think about what you are really trying to accomplish, and keep it as simple as possible.

Negotiate your leases wisely!

In any given year, we (my company, Meridian Realty Consultants) will read and abstract 8-10,000 leases. We get to see what landlords and tenants spend their time negotiating. It is not uncommon for someone in the office to say, 「Can you believe someone took the time to negotiate this?」 It might be something as simple as a tenant negotiating that common area maintenance expenses shall not include the cost of improvements to the leasable area of another tenant.

Why would we make that statement? Because excluding tenant improvements from CAM is a 「given.」 I am not saying it has never happened, but landlords do not include tenant improvement costs in CAM. Therefore, spending time negotiating that 「exclusion」 is a waste of time. It was going to have been excluded regardless of whether than negotiated language was included in the lease. It is amazing how many of these worthless (seriously) exclusions are negotiated. Is it really necessary to negotiate that the landlord shall not include in CAM a charge that has been recovered elsewhere in the lease? No. Again, it is a given.

At the same time, lease language that has a really material impact on expenses often is not as highly negotiated.

What has the single greatest impact on a tenant’s expenses? Is it the inclusion of roof repairs? Is it the inclusion of capital repairs or replacements? Is it the inclusion of seasonal décor? While they all impact a tenant’s rate, it is the METHOD used to bill CAM or taxes that has the most significant impact. If we have a 1,000,000 shopping center with four 200,000 sf anchor tenants each paying $2.00/sf for CAM and $5,000,000 in expenses, a tenant required to pay operating expenses based upon the leasable area of the shopping center would pay $5.00/sf ($5,000,000/1,000,000), while a tenant required to pay based upon the leasable area excluding anchors would pay $17.00/sf ($5,000,000 – $1,600,000 (4 anchors x 200,000 sf x $2.00/sf))/200,000 sf (1,000,000 sf – 4 anchors x 200,000 sf).

As we continue to show in out weekly review of lease language, it is imperative to understand how lease language and changes in lease language impact the cash flow from a property. So, if you are going to negotiate the lease language, spend the time negotiating language that will materially impact the cash flow.

“… the breakpoint shall likewise be abated…”

“… the breakpoint shall likewise be abated…”

This clause is almost a throwaway clause – one landlords and tenants give much consideration to – and it is the majority of retail leases.

So, what does it mean? If the tenant is struggling, and the landlord agrees to reduce minimum rent by 50%, then the 「breakpoint shall likewise be abated.」 To keep things simple, assume a tenant pays $100,000 per year in minimum rent and 10% of sales over a natural breakpoint ($100,000/10% = $1,000,000). If the landlord reduces minimum rent by 50% and 「the breakpoint is likewise abated,」 the tenant pays $50,000 in minimum rent and 10% of sales over $500,000. The intent is almost to ensure that the landlord doesn’t give too much.

But, its true impact is not always considered. Let’s consider a tenant with a lease commencing 10/1/17. They have the same $100,000 minimum rent and 10% of sales over the $1,000,000. They pay percentage rent on a 12/31 lease year end (including the true partial lease year*** ending 12/31/17). Now, let’s assume that in lieu of a tenant improvement allowance, the landlord gives a three month rent abatement. So, for October-December, 2017, the tenant pays no minimum rent. If that innocuous little statement (「the breakpoint shall likewise be abated」), the tenant is the required to pay 10% of sales over a 「likewise abated」 breakpoint, or $0. Therefore, the tenant pays 10% of all sales for 10/1-12/31/17.

The tenant was expecting essentially a $25,000 allowance as a three month rent abatement, but, it is possible, they actually got nothing because they end up paying the full amount in percentage rent.

This comes into play anytime there is a reduction is rent – a pure rent abatement, an abatement for a tenant improvement allowance, ant type of rent concession, alternate rent due to a cotenancy failure, alternate rent due to an exclusive violation and so on. Therefore, it is critical to understand this little bit of throwaway language and how it may impact a tenant’s percentage rent requirements.

*** – See a previous post on true partial lease years.

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