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Red light, green light, 1, 2, 3…

This weekend, I was in South Bend and Chicago. On the way back to O’Hare, my wife and I had some free time, so we stopped at Macerich’s Fashion Outlets of Chicago.

Besides having a beautiful, well thought out tenant mix, they have an outstanding parking garage. An outstanding garage, you say? Absolutely.

I am disappointed in myself for not having taken a picture of the lights they have over every parking space. Theirs was part of the original design, so they seem more a part of the ceiling than the example.  But, as you drive in, there is a sign reflecting number of spots available on each floor, similar to what you might see at an airport. However, unlike the loop systems that have been used for years (described as kind of a metal detector system) that have 90% accuracy, their system is over 99% accurate, as it monitors the specific space. As you pick the floor, you can scan the ceiling for a green light. I have to say, I geeked out a bit (and found my own green light). My wife, who usually humors me in situations like this, really loved it as well.

The online data related to the system states that it runs $300-$500 per space to install and I was able to confirm those numbers with Macerich. (Yes – I had to tell them how much I loved the system and find out how it was operationally).  Ongoing maintenance has been more than reasonable, at less than $10 per space.

It definitely makes for a more pleasant parking experience as a customer. Apparently, as an owner, it provides for much better parking lot circulation and the added benefit of parking usage data. And, recently, there has been a fair amount of discussion for a reduction in parking requirements for transit-oriented/transit-rich developments. I can really see this type of data being used to support those reductions.

We’ll get back to our normal lease admin topics next week.

Phantom Square Footage

stopsayingthat

I would have to guess that we may have annoyed a client this week because we would not drop an issue. Their leases required the inclusion of licensee square footage in Gross Leasable Area (GLA). Generally, most standard leases today define licensees as exclusions when calculating prorata shares. (Licensees themselves are typically defined as short term agreements less than 12, 18 or 24 months.) So, if you have a 1,000 square foot premises that is occupied by a temporary tenant, that 1,000 square feet would come out of the denominator when calculating the prorata share for tenants where licensees are excludable.

But, licensees are not in just inline space. In retail, most cart (retail merchandising units, or RMUs) are license agreements. With this particular client, because of the wording that required license agreements to be included in GLA, as they added a cart to the center, they were required to add the square footage to GLA. Without considering the consequences, the instead of adding 32 square feet when adding a 4’ x 8’ cart, they actually added 192 square feet which accounted for a 4’ perimeter all around the cart (4’ plus 4’ on either side (12’) x 8’ plus 4’ on either side (16’). In this case, 160’ more than actually existed. So, we saw that going in to a denominator with no reimbursement. If CAM and taxes total $20 per square foot, by including that additional square footage, they were absorbing $3,200.

But, on top of that, once the square footage was added to the center, it remained there – in total GLA. If the cart was used 6 weeks per year, the 192 square feet was included year round. One issue was what they did with the carts and other RMUs when they were not in use. The casual answer was that they were left in the common area and used by other tenants for advertising. The answer we were looking for was that they were stored elsewhere (so that we could take them out of GLA).

Why was that so important? For two reasons. The first is that absorption factor. Believe it or not, there was 4,000 square feet of what we considered phantom square footage being carried on the rent roll. 4,000 square feet at $20 per square foot = $80,000 of absorption!!!!! $80,000!!!!! The second reason was that a number of tenants in the center have cotenancy provisions in their leases based upon the occupancy of the inline GLA. Think about this – If you have 200,000 square feet of inline GLA and 20,000 square feet of inline GLA vacancy, you are at 90% occupancy. But, if you are also have 4,000 square feet of “phantom” license square footage that is vacant, you are at 88.23% occupancy (180,000 sf of occupied inline / 204,000 sf). If you have tenants that have 90% cotenancy requirements, that 4,000 square feet of phantom square footage cause a cotenancy violation.

So, we got the answer, and we asked again. And again. And pointed out that the rent roll carried 35+ vacant RMUs. In reality, there were three vacant RMUs in the common area, but the rent roll have never been “cleaned up.”

It’s worth taking a look at your rent roll, compare it to the lease plan and account for all of your square footage. There truly are both financial and non-financial consequences if you don’t.

(The gif comes from what some (at least me!) miht say is the greatest movie of all time, The Princess Bride, in honor of the 30th anniversary of its release this month. You’re welcome!)

Excluded Areas – Premises vs. Occupants

In defining excluded areas, a lease will often read:

“the tenant will pays its prorate share of the charges based upon the gross leasable area of the center excluding premises greater than 15,000 sf…”

Others may read:

“the tenant will pays its prorate share of the charges based upon the gross leasable area of the center excluding occupants (or tenants) greater than 15,000 sf…”

When you are setting up your reconciliations in your property management system, you focus on “15,000.” Both include the 15,000. However, one is “premises” and the other is “occupant” (or tenant).

When the language reads “premises,” it does not matter whether the premises is occupied or vacant. The space itself is the excluded area. When the language reads “occupant” (or tenant), it is an excluded area only when that space is occupied.

You may think to yourself that it does not matter in your leases because your standard lease requires the tenants to pay based upon leased an occupied area rather than leasable area – so if the space is not excludable as a premises, it is excluded as a vacancy, and that may very well be the case. However, if any tenants have negotiated minimum occupancies, your exclusion of the space as a vacancy may be limited.

Bottom line – make sure your leases read “excluding premises greater than xx,xxx sf.” You will save yourself a tremendous amount of aggravation (and cash flow)!

Hurricane Harvey, flooding and your lease obligations

A friend emailed me a suggested topic for this coming Sunday’s blog post. 「So with the events in Houston, is it time for a blog on Rent Abatements in Damage and Destruction clauses?」

Clearly, it is. And, as landlords and tenants are not going to wait to start paperwork for claims until Sunday, it is time for a Thursday blog.

Harveyfloodcenter

Photo from American Urban Radio Networks (aurn.com)

It is rare to see too much negotiation around 「Damage and Destruction」 or 「Reconstruction」 or the portion of the 「Utilities」 clause related to the unavailability of utilities, or to 「Business Interruption Insurance.」 And, honestly, when landlords summarize their lease requirements in an abstract, most of these clauses are not captured because, for the most part, the clauses rarely come into play. But, in the coming weeks, they will be front and center for property owners and tenants alike.

There is only one 「pat」 answer for who is responsible for what in terms of reconstruction, the payment or abatement of rent, damage-related terminations or so on, and that answer is that the responsibility is defined by each individual lease.

Typically, the damage and destruction section of the lease will define whether it is the landlord or tenant that is responsible for the reconstruction of the premises, and, more often than not, the party responsible for obtaining the property insurance on the building itself (as opposed to the contents), will be responsible for the repair/reconstruction.

The leases will also address whether or not the tenant is responsible for the payment of rent during the reconstruction period. Again, with the 「more often than not」 comment, there will be an abatement of rent during the period of reconstruction. But, it is not unusual for the tenant’s rent responsibility to continue. You will find that when it is the tenant responsible for rebuilding, it will be more common for the tenant being required to continue to pay rent during the reconstruction period.

Often buried in the lease is a requirement for the landlord or tenant to carry business interruption insurance. Again, it would be more common for a tenant responsible for reconstruction and for the payment of rent during reconstruction to have also been responsible for carrying business interruption insurance. The business interruption clause typically will address the prior the landlord or tenant the insurance is required to cover – often 12-18 months. It will often follow that if the landlord is required to reconstruct, and the tenant gets an abatement during the repair/reconstruction, then the landlord would have been required to carry the insurance covering the period. (The tenant likely paid either a prorata share of the insurance, or paid for it as part of a fixed CAM/operating charge.) The opposite is likewise true. If the tenant is required to repair and pay rent during the down time, they would have been required to carry the insurance. That being said, I just pulled a lease for a national sandwich shop at a property outside of Houston where the standard lease included business interruption insurance as part of the landlord’s responsibility with the tenant paying a prorata share. But, the requirement was stricken from the lease by the tenant.

Another issue to consider is that leases often include language giving the landlord and/or tenant the right to terminate the lease if the damage/destruction occurs in the last x months or years of the term. Over the years, we have seen damage destruction in a transitioning area being used to clear out a property to make way for a completely different tenant mix.

Also to be considered an issue addressed in an earlier blog – 「when minimum rent is abated, the breakpoint shall likewise be abated.」 Keeping it simple, if a tenant’s annual breakpoint is $1,200,000 for the year and they have a 12/31 lease year end, a Houston tenant will pay percentage rent for 2017 based upon sales through 8/31 over a denominator of $800,000 ($1,200,000 x 8/12. I am oversimplifying the other variables). Then let’s say it takes 12 months to restore the property. For 2018, the tenant will pay percentage rent using sales for the year (just 9/1-12/31) and a breakpoint of just $400,000. Knowing how sales typically fall, they may end up paying no percentage rent for 2017, but a disproportionate amount for 2018 (and since it will not really be considered a partial year in either case, any extended or extended partial lease year language (addressed in yet another earlier blog) will not be there to protect the tenant.

And, just when you think you may not have issues because your property was not damaged, in many cases, even though it is beyond the landlord’s control, if utilities are not available at the property and the tenant cannot operate, there may be related rent abatements. It never ends!

I wish there were better, more universal answers that I could give. But, yet again, the answers lie in the leases.

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.

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