Archive for the 'Lease Contracts' Category

Apr 15 2010

New Trend in Commercial Property Leasing

In the past few months I’ve noticed a definite trend towards organisations searching for new premises.

A year ago, this was not the case at all. The bulk of our work then was negotiating rent reviews and lease renewals. People were still nervous about making decisions in recessionary times.

What’s also interesting is that we are now seeing more and more new clients who previously would have taken a DIY approach to managing their commercial property leases and negotiations.

Executives are increasingly recognising that property is more and more complex and involves significant risk. They see the value in outside expertise such as that offered by us at Parallel Directions Ltd.

That value is tangible and can be directly related to profitability and direct return on investment.

Take for example a franchise
A franchise holder may have plenty of expertise in the product or service they offer, but know little about the complexities of searching for premises and negotiating a commercial property lease. The biggest pitfalls are the ones people are completely unaware of.

There are known unknowns… things that we know we don’t know. But there are also unknown unknowns… things we do not know we don’t know. It is the latter category that tends to be the difficult ones.
– Donald Rumsfeld

The risks involved really struck home when I told one client that the entire profit from their franchise over the 3 year period of a property lease could be completely wiped out by the tough “make good” clause.

This is the clause that requires a tenant to restore the property to the state it was in when they signed the lease. It can involve huge costs, such as removing partitions and all alterations made during a fit-out, relocating lighting and air conditioning, and painting and redecorating parts of the property that may have changed during the term of the lease.

So while many organisations have personnel with some property management expertise, there are a large number of increasingly complex matters that many are unaware of and therefore unprepared to handle effectively.

As I often say, smart management of property leases can have a significant impact on profitability. In complex and increasingly volatile environments, it pays to have the right expert advice.

Source: http://www.officeblog.co.nz/new-trend-in-commercial-property-leasing

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Mar 31 2010

Hospitality landlords urged to help tenants

Published by under Lease Contracts

Hospitality landlords urged to help tenants
By GREG INNESS – Sunday Star Times Last updated 05:00 21/03/2010

Landlords in the hospitality sector are under pressure to drop rents or risk being left with vacant buildings.
It is a common arrangement in the hospitality sector, which includes pubs, hotels, motels, cafes and restaurants, for an investor to own the premises, and lease them to an operator who runs the business for a fixed term.
Often the investor who owns the premises is also a former operator of the business, who previously owned the whole package on a freehold going concern basis, but later sold the business with a lease in place, perhaps to retire, and kept the premises as an investment.
However, it is also common for business operators to sell before their lease has expired. That lease will then continue to the end of its term with the new owners and can then be renegotiated.
But tough times in the sector have forced a significant drop in the value of leasehold businesses for sale.
The hospitality business is notoriously fickle and “under new management” signs are a common feature of the industry.
With banks generally more conservative in the current economic climate, they are being cautious when assessing funding applications from people wanting to buy leasehold businesses such as pubs, motels and restaurants.
Peter Harris, a broker with Bayleys Real Estate who specialises in South Island hospitality businesses, said banks would generally fund up to only 50% of the price of a leasehold business, meaning the purchasers would have to provide the rest as equity. Even then, the banks would take a close look at the borrower’s track record in the sector and the risks associated with the business they were wanting to buy, with a particular emphasis on its cash flow.
Difficulties raising finance had seen prices tumble for leasehold businesses, in some cases leading to bargains.
“A [leasehold] business I might have sold two years ago for $300,000, you might be able to buy now for $225,000,” Harris said, a decline of 25%.
However, a bargain was usually a bargain for a reason, and that often had as much to do with the fact that the business was struggling as with any difficulties raising finance.
Country pubs were struggling.
“I think it’s just because of new attitudes now to drinking and driving,” Harris said. “People are taking a more responsible attitude and are tending to take their liquor home because they can’t afford to get caught drinking and driving.”
Lack of patronage at some traditional pubs had forced owners to look for new uses for their properties, such as conversion to a backpackers hostel and turning much of the bar area into a cafe. But with an oversupply of such accommodation in the industry, the market for such properties had “certainly softened,” Harris said.
The businesses that were performing best were those on the tourist trail which were able to attract a mix of local patrons and visitors.
Hospitality Association of NZ chief executive Bruce Robertson points the finger at unrealistic landlords for the problems many businesses are facing.
“I think what is at the heart of this issue is that some of the landlords have not recognised that they are still charging too high a rent for the profits a business can generate,” he said. “So we’ve got rents that are too high and too many landlords haven’t been willing to recognise that they are better to have a tenant on a lower return than have an empty building.”
Robertson said it was common for business operators who were struggling to ask landlords to drop their rent, only to have the request refused. As their debts piled up, operators were forced to walk away from the business and the landlord would be unable to find new operators to take over the lease.
Faced with the option of dropping the rent or have an empty building, landlords would often step in and take over running the business themselves. “We are seeing some of them having to come back in and run the business because they have no choice,” Robertson said.
Often that meant coming out of retirement to work in an industry they had not had an active involvement in for many years and which had changed considerably. So they were not necessarily any more successful at running the business than the tenants they replaced.
“If the landlords are more realistic [about rent], they’ll be better off in the longer term,” Robertson said.
Many landlords also failed to keep investing money in their premises to keep it up to date. Often this meant adding or improving dining and entertainment facilities. “The ones that are struggling are the ones that have had little investment and the landlord may not have put any money back into the property, so they are sort of locked into that 1970s-style and aren’t meeting today’s needs,” Robertson said.
“But if it is, say, a country pub that has had that investment, so it meets the needs of the wider community and is somewhere you’d take your family for a birthday dinner or where mums meet up for coffee after dropping the kids at school, then they are doing pretty well. But to get to that point they’ve had to have investment in facilities.”
Ironically, difficulties with many leasehold arrangements had increased interest from buyers looking to acquire a business and its premises.
“It’s become clear, the preference is for buyers to look for freehold going concerns,” Harris said.
These were either people who had already been involved in the industry but were currently cashed up, or new entrants to the industry.
Harris said he took a call from a couple last week who had both lost their jobs and were looking to buy a hospitality business, something that was increasingly common.
Many businesses such as pubs or motels often had owners’ accommodation attached, so buyers could sell their existing home, use the equity from that and any other savings to help fund the purchase, and then live on the premises with the business providing an ongoing income.
However, whether operators have leasehold arrangements or own their premises, the operating environment is still difficult.
“Tourism numbers are holding well, particularly out of Australia, but we’ve still got a fair degree of [spare] capacity, in beds, bars, restaurants and cafes, which means New Zealanders and our visitors are pretty well spoilt,” said Robertson. “The industry is pretty competitive and people have struggled with yields.
“We may be out of recession but I don’t think New Zealanders have really opened their cheque books yet. They are still careful with their discretionary spend, so there’s still that lag effect across the hospitality sector.”

http://www.stuff.co.nz/business/3481…o-help-tenants

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Mar 31 2010

Sublessee’s options if Headlease is cancelled

Published by under Lease Contracts

Q. I operate a small family business from a shop I sublease from another company. That company leases the shop from the owner.
I have recently heard rumours the company has not been paying rent to the owner. Can the owner cancel the lease with the company at any time? If it does cancel the lease, does that bring my sublease to an end?

I am concerned as this would be devastating for my business. I have heard if the term of my sublease with the company is longer than the term of the company’s lease with the owner, I can argue there has been an assignment of company’s lease to me. What are my options here?

A. In this answer we will refer to the lease between the company and the owner of the property as the headlease. If the company has not been paying rent to the owner of the shop then you are right to worry. The owner has the right to cancel the headlease due to the non-payment of the rent. Any valid cancellation of the headlease would bring your sublease to an end as your sublease only exists by virtue of the headlease.
However, the owner can only cancel the headlease if it complies with certain notice provisions. For instance, the rent must be in arrears for 10 working days before the owner can issue a notice of intention to cancel the lease.

The owner must also give the company no less than 10 working days after service of the first notice to pay the arrears in rent.


This assumes there have been no other breaches of the lease. Most importantly to you is the owner must serve the notice or a copy of the notice on you, the sublessee, if your name and address is known to the owner. This will give you notice of the owner’s intention to cancel the lease. You are correct in relation to a sublease being treated as an assignment in some circumstances. If the term of your sublease exceeds the term of the headlease then, whether it operates as an assignment depends on whether the sublease was entered into prior to or after January 1, 2008. This is when the Property Law Act 2007 came into force. Assuming your sublease was entered into after that date, your sublease will not operate as an assignment unless the document itself says otherwise. Instead, the term of your sublease will be reduced to expire at the same time as the headlease.

However, if your sublease was entered into prior to January 1, 2008 then the sublease will operate as an assignment. As the assignee, you will become the direct tenant of the owner and this would allow you to take steps to remedy the breach of the headlease and prevent cancellation of the lease.

Your other option as sublessee is to apply to the court for relief under section 258 of the act. This section only applies where the headlease has been validly cancelled. You can only apply under the section if the headlease has not been reinstated by a successful application by the company and if no more than three months has lapsed after the date on which the owner re-entered the shop.

By making this application, you would basically be asking the court to order the owner to enter into a lease directly with you. This would put you in the position of the tenant of the headlease for the remainder of your sublease term. Any new lease term would begin on a date no later than the date on which the cancellation of the lease took effect. It would expire no later than the date on which the original sublease would have expired. But what must be remembered is the courts have a wide discretion when determining whether to grant a sublessee relief and many factors will be considered before any form of relief is granted.

Source: http://www.nzherald.co.nz/commercial-property/news/article.cfm?c_id=28&objectid=10634491

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Nov 11 2009

How to find and lease office space

Published by under Lease Contracts

A useful article for those not experienced in leasing commercial property.  Written in the States but the process is the same, click HERE to read.

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