Real Estate Strategies Corporation

Dear Staz:

I truly enjoyed presenting "Enough About Me, Let's Talk About Me!" an Executive Career Workshop at your Greek Synergy event in Manhattan. Many thanks for permitting me to be a part of such an important beginning.

I've got some exciting news! COSMOS-FM, Hellenic Public Radio, has invited me to be interviewed LIVE on the air TONIGHT, August 4th, at 7:00 PM on 91.5 FM. Listeners will be able to call into the radio station to ask questions about executive job search, high level networking, how to build meaningful business relationships, how to protect their careers and secure the right executive position.

Please tune-in to FM 91.5 or listen via the internet at 7:00 PM tonight and invite those who might benefit to listen and to call-in.

Sincerely,Andrew B. Zezas, SIOR
Relationship Manager,Strategist, President & CEO

REAL ESTATE STRATEGIES CORPORATION

908.245.5999 x11
201.906.8964 cell

http://www.thecfosguide.com/
www.LinkedIn.com/in/AndrewZezas
http://www.andrewzezas.com/
Blog: CorporateAdvisor.wordpress.com
Blog: AndrewZezas.blogspot.com

Business Driven Real Estate Solutions...and Opportunities

http://www.realstrat.com/

3 Executive Drive, Suite 400
Somerset, New Jersey 08873

Licensed Real Estate Broker

Sunday, August 2, 2009

Hello? Hello? Hello? Is there anybody in there?

Hey, wondering why I haven't uploaded any new posts here in a while? That's because I'm now blogging about corporate real estate at www.CorporateAdvisor.wordpress.com. Visit me there, as I've already posted some great thoughts and have received some really interesting feedback from readers.

For my ideas on careers, life, and everything that is not real estate, visit my personal blog at: www.AndrewZezas.blogspot.com. I hope to hear from you.

Best regards,

Andy

Tuesday, March 31, 2009

Negotiating Leases with Landlords That Won't Be Around

There was a time when no matter how long a lease your company signed for office, distribution, technology, or other real estate, you had a reasonable expectation that you would be dealing with the same landlord throughout the lease term, and even after your company renewed its lease. Back then, you could actually form a relationship with your company's landlord, if you chose to, because they could be counted on when you needed them throughout your lease term.

Nowadays, dealing with the same landlord from the beginning of a lease until the end is a rarity. With so much commercial property now in the hands of pension funds, institutions, and private equity real estate investors, most of whom often have short term hold periods and quick exit strategies, a tenant can expect to deal with two or more successive landlords during the term of its lease. Even if the same company retains ownership of your property for an extended time period, though not very likely in today's environment, if the landlord is a corporate or institutional type of owner chances are the leasing manager you're dealing with today will be replaced by another executive at a later date.

Managers of private equity real estate funds seek not only to generate positive annual returns but, they expect to generate equity appreciation, which can be realized in multiple ways, including by refinancing or selling the properties owned by their funds. In many cases, private equity and other investor focused real estate funds will acquire an asset with the expectation of achieving a liquidity event and/or exiting the property in as little as three years or as many as seven. So, as your company negotiates its new lease for office, distribution, technology, retail, or any other type of real estate, or if your company plans to extend the lease it already has, it is likely that the landlord with whom you're currently dealing will not be there in three years or more.

Given current economic and real estate market conditions, whether or not your landlord will be around at a later date is more pointed, since many buildings are at risk of foreclosure, many will be deeded back to their lenders, and many will be sold over the next two to five years.

So what? Why is this so important? Any new landlord would have to abide by the terms agreed to in the lease by the original landlord anyway. So, why be concerned....right? Remember that while companies lease real estate from other companies, it is people who make the deals. In any lease negotiation, both parties typically make concessions in exchange for certain terms. And, while the logical strategy is to thoroughly document all aspects of any transaction, tenants have to make decisions that sometimes require them to place personal trust in the promise by a landlord that he or she will complete, accomplish, or maintain some aspect of the property or the transaction in a certain fashion, at a specific cost, by a particular date, etc. This is sometimes the case with smaller tenants or those whose creditworthiness may not be perceived well by a landlord. But, it can also be the case when large companies negotiate substantial transactions.

In a recent negotiation where our firm, Real Estate Strategies Corporation, represented the interests of a company seeking to become a tenant in a large office building, the landlord included text in their proposed lease that provided them with the right to relocate the tenant, our client, during the lease term as often as necessary and with only thirty days notice. You can imagine the kind of burden this would have placed on the tenant. During negotiations the landlord insisted that the clause remain in the lease but, said that because of the configuration of the floor, that it was unlikely that she would seek to relocate the tenant. While the text clearly provided the landlord with the ability to force the tenant's relocation, her words suggested something else. So, then why include that clause? Since the clause provided the landlord with strong rights, we reminded the tenant that during the course of the lease, the landlord could change its mind or the tenant could be dealing with a new landlord who could choose, based on the written word in the lease, to relocate the tenant, despite promises to the contrary made by this landlord. We strongly advised the tenant not to accept the landlord's word and to make its decision based solely on the written word, which they did.

When landlords change, so can methods and styles of conducting business. Specific business and lease items that can be most effected by changing landlords are typically those that may be external to a particular tenant but, may impact that tenant, and may include:

Commitments by the landlord as to how certain future events might play out
Completion of building improvements by a particular date, at a certain cost, in a defined manner, to create a desired image, etc.
Completion of lobby, common area, parking, landscape or other upgrades
Installation of amenities and services of a particular type and quality and by a certain date
Building expansions and additional on-site developments
Unofficial notice in advance of space becoming available and before other tenants or the general market are notified
Commitment to negotiate an expansion or extension on certain terms
Verbal or hand-shake commitments that might be counter to what appears in the lease, such as the likelihood and frequency or the landlord exercising its right to relocate a tenant
Keeping competing companies from taking space in your building
The landlord agreeing to lease the vacant space directly adjacent to your space last, so you can have time to grow into it, instead of leasing it first
Landlord cooperation when you seek to sublease your space
Providing your company with construction or tenant improvement upgrades or committing to construct your premises by a certain deadline, at a certain cost, or using a certain level of quality materials and workmanship
Providing quality services, like cleaning, maintenance, repairs, and the like, in a timely, professional, responsive, and cost-effective manner
And, more...

So, how can you possibly put faith in someone or in a company that will not likely be there for the duration of the lease? How should you negotiate leases differently based on this likelihood?

No terms should be left to memory or be agreed to based upon hand shakes. All terms must be clearly defined in a written lease document. Otherwise, they should not be counted on, and neither should you count on the party making verbal promises to keep them or even to be around. Remember, it is likely that your company will experience two or more landlords during the term of your lease. If a landlord or leasing manager won't put his or her commitments in writing, then those promises should be considered worthless, not only because the person might be lying but, because that person simply may not be around in the future to keep verbal promises.

Other lease clauses must be carefully addressed in the context that your company may likely experience transfers of its building to multiple landlords. Such clauses include those concerning:

Notice provisions
Default
Casualty
Transfer of security deposits to new owners
Future financial commitments by the landlord
Timely delivery of operating statements and how escalations are calculated
Your company's rights to review the landlord's books and records and where the landlord is required to make those records available to you
Service continuity during transfers of ownership
Frequency with which your company may be required to execute legally binding estoppel certificates
Definition of rights and options
And, more...

You can expect commercial properties to be sold more and more frequently as traditional landlords exit the commercial real estate ownership business and private equity real estate funds, hedge funds, institutions, and other non-traditional real estate players take control of a greater proportion of commercial properties throughout the country. Make certain that you negotiate your company's leases with this in mind, so you can protect it from such changes.

If your company does not have the full compliment of business and real estate resources required to address these issues and properly negotiate leases to protect its financial and operational issues, then engage a qualified commercial real estate service provider to advise and represent your company.

Either way, plan in advance and negotiate your company's leases aggressively based on the assumption that you will deal with more than one landlord during the term of your company's lease.

Tuesday, February 17, 2009

Acquiring Real Estate as a Subtenant Can Be Dangerous to Your Company

So, you made an inexpensive lease deal for your company. You likely negotiated a short-term sublease, achieved a low rent, got flexible terms, and even got a lot of great furniture thrown-in at little or no additional cost. You made such a great deal because the tenant who occupied the space before you just wanted to alleviate their financial pain and reduce the cost for space to which they were obligated but, no longer needed. And, your company's attorneys made sure the lease agreement was rock solid...safe and sound. In what are presently tough financial times, you really did very well for your company. You should be proud. You're a hero! Through no fault of yours, your company may also be in danger!

At least three substantial risks exist for companies that occupy subleased real estate, especially in the current economic environment. Those risks include:

1. Sublandlord Default:

The sublandlord defaults on its lease and the building's landlord terminates that lease

2. Landlord Mortgage Default:

The building's landlord defaults on its mortgage and the lender forecloses on the building, or the landlord gives the building to its lender in lieu of foreclosure

3. Landlord Tax Default:

The building's landlord defaults in the payment of real estate taxes, and the local municipality takes the building and sells it at a sheriff's sale

Under any of the above scenarios, there's a pretty good chance that your company will be in trouble. No matter what happens, when buildings begin to experience financial difficulties, tenants often suffer because its is usually a long, slow slide until financial challenges get resolved...one way or the other. Consider the following:

Sublandlord Default

As a subtenant, your company's business relationship is with the original tenant, also know as the sublandlord. Your company is responsible to pay rent to the tenant / sublandlord in an amount that likely has no bearing on the rent that the tenant / sublandlord pays to the building's landlord. Your company could be paying a higher or lower rent than the tenant / sublandlord pays. In the current economy, your company is likely paying a lower rent, and the difference is being paid by the tenant / sublandlord.

Should the financial burden of subsidizing your company's rent become too much to bear for the tenant / sublandlord, or if the tenant / sublandlord should default on its lease and not cure that default to the building landlord's reasonable satisfaction, where would your company stand? The answer may be "Nowhere!" or "Out in the cold!" Unless your sublease agreement provides for a direct relationship between your company and the building's landlord, one that by-passes the tenant / sublandlord, whether that relationship existed at the outset of the transaction or may be triggered at your company's option or by the building's landlord, if the tenant / sublandlord defaults on its lease, your company may have no control over its space and may be forced to vacate the premises.

Furthermore, if your company invested dollars into the space it subleases, you can expect to receive no remuneration when the building's landlord terminates the lease. And, if the tenant / sublandlord pledged an interest in its furniture to the landlord, the furniture it agreed to permit you to use, you may be required to leave the furniture in place, restore it, or reimburse the landlord for changes or damage you may have affected to it. To make matters worse, you may only first learn of the termination of the lease and your company's sublease after the tenant fails to resolve its default. You may only learn that your company must vacate the premises at the last minute. In extreme cases, the building's landlord may pad-lock the doors and let no one in. How's that great low-cost deal looking now?

Landlord Mortgage Default

If the building's lender ends up with ownership of the building where your company occupies real estate under a sublease, whether through a foreclosure or because the building's landlord turned over the building in-lieu of foreclosure, as a subtenant there is one very important point to remember: Your company's lease may be terminated!

That's right! Lease agreements are between a building's landlord and its tenant. Subleases are between a tenant / sublandlord and its subtenant. Sublease agreements are always subject to the terms of the tenant's lease, unless otherwise agreed to in writing by the building's landlord. Depending on the mechanics of how a lender takes over a building, that lender most often will have the right to terminate leases in that building. The lender may elect to terminate all, some, or one of the leases. Your next question should be: "Why would a lender terminate leases with tenants that are paying rent?"
There are a host of reasons why a lender that takes over a building may terminate leases, including:

As a tactic designed to drive tenants to renegotiate leases to achieve higher rents, more favorable landlord terms, and more
The building could have a greater sale value if it were partially or completely vacant
The current mix, quantity, or quality of tenants may negatively affect the building's value
The lender may wish to make room for a large, important, or desireable tenant from within or from outside the building
The lender plans to make substantial renovations to the building, plans to modify it or even demolish it for some alternative use
Others

No matter what the reason, a lender that has taken ownership of the building may terminate tenant leases. And, that means that subtenant leases will be canceled at the same time.

If your tenant / sublandlord's lease contains a non-disturbance clause or non-disturbance agreement, then the lender may not be able to cancel your tenant / sublandlord's lease, and your sublease agreement may be safe. A non-disturbance agreement is between lender and landlord or lender and tenant, and provides an agreement from the lender not to distrub or cancel the lease to which that agreement pertains.

A non-disturbance agreement for one lease does not apply to any other lease unless the agreement says so. Moreover, a poorly written non-disturbance agreement may contain loopholes that a lender could exploit to its benefit. Absent a solid non-disturbance agreement in the lease of your company's tenant / sublandlord, if a lender takes over your building, your company may need to call a mover.

Landlord Tax Default

If a building's landlord defaults on the payment of real estate taxes, the local taxing authority may use it governmental powers to take over the building. Since local governments tend not to be in the building management business, buildings they most often sell at auction those buildings that they take over. The local authority may have the right to cancel all leases contained in a building they take over. Since non-disturbance agreements are between a building's landlord and its tenant or between tenant and lender, they usually have no standing when a local taxing authority takes over a building.

How Can You Protect Your Company?

If your company already occupies real estate as a subtenant, all you can do now is to keep your eyes peeled for signs of trouble and have a contingency plan in place. Read 32 Signs That The Building Your Company Leases May Be In Serious Financial Trouble. If your company is considering occupying a sublease, do your homework to ensure that your occupancy will be stable. How? Hire superb real estate and legal advisors to research that the building you select and to ensure that your company's occupancy will be safe.

Thursday, February 5, 2009

Turn Crisis into Opportunity....Intelligently! 10 Reasons Your Landlords Will Renegotiate Your Company's Leases

When there exists little or no demand for commercial real estate, why would your company simply offer its surplus leased real estate for sublease, and just sit and wait, and wait, and then wait some more? That's like trying to sell cheeseburgers and hotdogs at a vegetarian convention!
Offering surplus real estate for sublease is a business initiative. Why engage in any venture that has an extremely low probability of success, and an even lower likelihood of profit?

Unfortunately, if your company has no use for all of its real estate in a given location, then the approach below may not apply, and offering your space for sublease or assignment my be the best answer. If, on the other hand, your company has no further use for a block of leased real estate, plans never to occupy that surplus space again but, will continue to occupy other space in that same building or complex, your company may have other more viable opportunities available to it that may actually succeed and generate real profit!

Renegotiating your company's leases may prove to be more an opportunity than just a solution. In fact, it may be both! A lease renegotiation could likely provide a solution to your company's surplus real estate problem, while creating financial and operational opportunities from which your company could profit!

Through a lease renegotiation transaction, your landlord will likely consider taking back your company's surplus space in exchange for an extension of the term on the space your company will continue to occupy. That's the typical quid pro quo in these transactions...tenants and landlrods trade lease term (usually longer) for space (usually less) and other benefits. The success of your transaction will depend largely on a number of moving parts, including the amount of space your company wishes to dispose of, the amount of space your company will continue to occupy, the remaining term on your original lease, the length of lease extension to which you will agree, and more. How all of the above will affect your landlord, given the stability and / or vacancy of its building and its overall portfolio, as well as, many other factors, will play significantly into the levels of success your company might achieve.

Lease renegotiations have become very common. In the current economic environment, they can be effective tools to create benefit for both landlord and tenant. That's when such a transaction really comes to life! Companies that don't have surplus space may also realize opportunity by renegotiating their leases to secure operational and financial benefit by trading an extended lease term for lower costs, greater flexibility, enhanced business terms, and more.

Other goodies, both operational and financial, often become a part of lease renegotiation transactions. Lower short and long term rental rates; free rent; landlord-paid cash allowances; recalculated operating expense clauses and base year formulae to protect the tenant from drastic future occupancy cost increases while permitting the landlord to operate the building profitably and in a first class manner; improved business terms; greater flexibility resulting from enhanced options and rights; future growth and contraction protection; resolution of landlord / tenant disputes; and more, are often components, in various combinations, of a successful lease renegotiation transaction.

Lease renegotiations can be the right move no matter how many years are remaining on your company's lease. Certainly shorter remaining lease terms are easier for landlords to address, especially when the need to take back surplus space is part of a tenant's requirements. But, under the right circumstances, even leases with many years remaining could be candidates for lease renegotiations. So long as both landlord and tenant derive sufficient benefits, a lease renegotiation transaction would certainly pose less risk than offering space for sublease. Moreover, if your company is dissatisfied with the terms offered by your landlord under a proposed renegotiated lease, you can always terminate those negotiations and turn your focus back to subleasing. That assumes, of course, that your lease provides for subleasing rights that are not so restrictive as to impede your company's ability to achieve its objectives.

It is a misconception that only very large or very strong companies can successfully renegotiate their leases or achieve any significant benefits. That is simply not true. Sure, landlords prefer to deal with companies that they deem to be good credit risks. But, in these times, the definition of a good credit risk has changed. Moreover, the more a landlord's circumstance would be improved by a lease renegotiation, the less stringent they tend to be in their definitions of good credit risks and which companies they'll negotiate with. And, neither does size matter. Remember that landlords are in the business of deal-making. With such low current demand for commercial real estate, many landlords are not actively involved in as many deals as they'd like. So, your timing could be perfect. Simply put, if your company can offer a realistic benefit to its landlord, your company may be a solid candidate for a lease renegotiation.

Before considering whether a lease renegotiation transaction could work for your company, it would be wise to consider how such an approach could benefit your transactional opponent, the landlord. Without sufficient opportunity for the landlord to improve its position in your transaction, the likelihood of completing a successful lease renegotiation can be greatly diminished. Landlords will typically engage in lease renegotiations, because such transactions:

1. Create long term tenancies

2. Work toward stabilizing occupancies in a building and / or in the landlord's overall portfolio

3. Create the market perspective, whether real or merely perceived, that a landlord's buildings are more stable, have higher occupancy levels, and are therefore, better operated, more desireable, and in greater demand, which can result in other positive opportunities, including leasing, financing, purchasing, selling, development, investors.

4. Reduce landlord's future risk of vacancy, downtime, and lost rent

5. Can reduce costs associated with acquiring new tenants, such as advertising, marketing, and others

6. Typically create opportunities for landlords to refinance or sell buildings and / or secure relationships with new investors

7. Provide hedges against future declines in rents and increases in leasing incentives, such as free rent, rent reductions, relocation and lease absorptions, cash allowances, and more

8. Minimize a landlord's risk based on completing a transaction with an existing tenant with whom the landlord is familiar, the tenant's payment history, type of occupancy, use of the building, and more

9. May be viewed by a landlord as creating upside potential for additional rental income, when they include taking back surplus space

10. May create an opportunity for the landlord to accommodate the growth needs of other existing tenants, when they include taking back surplus space

11. Other

The above list is, by no means, intended to be comprehensive, as every landlord runs its business differently in comparison to its competitors. Each landlord will view lease renegotiations differently. Like each landlord, each tenant company will derive benefits from a lease renegotiation that will vary in comparison to what others will achieve.

A lease renegotiation, like any other business initiative, should first be intelligently planned by an expert qualified to advise on such transactions. Once realistic expectations are developed in comparison to the tenant's objectives, and assuming that those objectives could be met, only then should the tenant engage in discussions with its landlord about such a transaction, either directly or through its advisor.

Lease renegotiations most often pose less risk and require less time than offering space for sublease, especially in economic times like these when demand for commercial real estate is at a low. When planned and executed intelligently, lease renegotiations can prove to be both solution and opportunity for a company that is either in need of disposing of surplus space or one that has no surplus space but, seeks opportunity to enhance its operational and financial circumstance. Because lease renegotiations also provide benefit for commercial landlrods, they often make for superb "Win! Win! transactions for both sides.

Tuesday, January 13, 2009

9 Defensive Strategies When Your Landlord May Lose The Building Your Company Leases

In tough economic times like these, if yours is like most companies, it has likely spent considerable effort in reviewing and cutting operating expenses, has put a hold on new hiring, has laid-off employees, and has cut unnecessary costs to the bone. New initiatives may have been indefinitely delayed and growth planning may have been replaced with survival planning. That's what most prudent companies are doing these days, carefully positioning themselves to successfully make it through this financial funk.

Imagine planning and executing a well designed defensive operational and financial strategy, only to find out that the real estate your company leases may not be under your control and that the space may be pulled out from under you! That's right! Your landlord may not be as good at pruning expenses and could lose your building, throwing your company's rights to remain in its space into question.

"But, we have a lease with many years remaining; we pay rent and have never been late! They can't take our space away from us....can they?

The answer to that question is a resounding....."That depends!" It depends on a number of factors, from whether or not your landlord will really lose its building, to who will end up with it, to what the process will be if the landlord does lose the building, to how thorough your company's lease was negotiated in the first place and what protections that document affords you.

The first step is to read your company's lease. Check all of the clauses that might impact your occupancy, including those pertaining to Non-Disturbance, landlord default, self-help, sublease, early termination, and others. Since your lease constitutes the rules of engagement, be certain to understand your company's rights, privileges, and obligations, in the event of a serious landlord problem.

Make it your business to understand all lease components that could affect your company's ability to remain in the building if the landlord were unable to support it financially. Specifically, does your lease provide for self-help (the ability to secure services that the landlord fails to provide) in the event that the landlord defaults in providing services to you? Can you contract for temporary cleaning and other services? Can you secure utilities directly from the utility provider? Can you do the above without putting your company into default of its lease?

What if the landlord actually goes bankrupt and ownership of the building reverts to the lender? Can the lender terminate your lease? Maybe! Does your lease require the landlord to secure a non-disturbance agreement for you from the lender? A non-disturbance agreement, if written properly, will prevent a successor, like a lender, from terminating your lease. "Why would a lender terminate our lease? Wouldn't they prefer to retain rent paying tenants?" That, too, depends! It is possible that your building could have a greater value or a greater likelihood of being sold if it were vacant. Perhaps a larger tenant, or one that for some reason is more desirable, may want your space. Or, maybe your company's use of its space is not conducive to the lender's future plans for the building. Without a non-disturbance agreement, your company could receive notice to vacate and have little choice.

When commercial landlords experience financial difficulties, the tell tale signs may be easy to spot. In many cases, payments to vendors, service providers, taxing authorities, and others become delayed or are sometimes not paid at all. In others, the building shows signs of neglect.

If you believe you have reason to be concerned, do a little detective work. Check with the local property tax dept, utility companies, and other building services providers to confirm that bills are being paid in-full and on-time. Ask around, too. Are vendors, commercial real estate brokers, contractors, and others being paid in-full and on-time? But, be careful here. You wouldn't want to spook anyone and create concern about your landlord if problems don't exist.

Take a look around your building and ask yourself some of these questions:

Has building management or maintenance staff been cut?
Is the landlord any less responsive?
Are capital projects being delayed?
Is construction languishing in an incomplete state for extended periods?
Are repairs taking too long to complete?
Does the building look as good as it did?
Are the interior and exterior common areas being well maintained?
Is the landscaping being maintained, trash being removed and parking areas being plowed of snow promptly?
Are vacancies growing?
Are smaller, less desirable, and / or transient tenants taking space?
Has the landlord tried unsuccessfully to sell or refinance the building?

These are common indicators that a building and / or its landlord may be in financial trouble. So, what happens if you uncover bad news and find out that your landlord isn't just managing cash flow but, may truly be in danger of losing its building.....YOUR building?!

Here are 9 Defensive Strategies When Your Landlord May Lose The Building Your Company Leases, that might stave off a catastrophe for your company:

Buy the building from the landlord (This one may be challenging if your company is a small tenant in a large building)
Buy the building's mortgage from the lender
Sublease your space (This strategy may be least effective if the building is experiencing financial hardship)
Restructure your lease (Can your company create enough of a financial benefit for itself and its landlord to save the building? What would be the quid pro quo?)
Seek self-help (Which services, on which the landlord may default, can your company perform or have performed by other service providers without placing itself into default of its lease?)
Check with your real estate professional (What's the word on the street?)
Check with your attorney (What legal remedies might your company have at its disposal?)
If your lease is scheduled to expire, move now....move early (The double rent that your company might pay for a short time period if it moves to other quarters before its lease expires may be cheap in comparison to the expenses, lost productivity, and other challenges it might experience if the landlord loses its building)
Have a conversation with your landlord to determine what you might work out together

So, how bad could it get? What could happen if your landlord DOES lose your building to its lender.....or, to the sheriff for non-payment of property taxes?

Read my next post!

Real Estate Strategies Corporation

Monday, June 13, 2022

Invoice

Tuesday, August 4, 2009