Commercial Property – What to Do If the Lease Is Unsigned

In commercial property management and leasing you frequently come across the problem of the tenant delaying the signing of the lease. It can be for a number of reasons such as:

  • The complete terms of the lease are still being negotiated
  • The tenant is still finalizing their fitout design
  • The various partnership members are not all available for signature
  • The documentation is still with the tenants solicitor
  • The business or government department is taking time to process the document
  • The decision makers are away
  • Approvals for permitted use are delayed at local council

So the list goes on and you will see many variations of the problem. Tenants will give you so many different reasons why the lease is still outstanding. Frequently the delay process is not as it seems and there are other alternatives that the tenant is adopting for their own reasons. Tenants will not tell you the whole truth; that is a fact.

The signature on a lease is then a critical element of making the tenancy available for occupancy. In almost all lease situations, you would want the tenant to satisfy the following criteria before the keys to the tenancy are handed over:

  1. The lease is totally and correctly signed
  2. The plans and drawings associated with the tenants fitout have been submitted to the landlord and are approved
  3. The plans and drawings associated with the tenants fitout have been submitted to the building control board or local council and are approved
  4. The first months rental is paid in advance in accordance with the lease documentation
  5. The appropriate personal or bank guarantees are provided to the landlord in accordance with the agreement to lease
  6. All associated documentation and disclosures tied to the lease implementation are correctly served and satisfied
  7. The deposit required under the lease agreement or lease arrangement is paid

The golden rule in the leasing a property to a tenant is that all lease requirements are satisfied in accordance with the property managers instructions and the landlord’s requirements before any keys and tenancy access are given.

It should also be said that any incentive to be made available to the tenant as part of the new lease structure should not be released or made available until all the six points above are satisfied.

In most instances with commercial property, the tenants you work with are very experienced in business and negotiation. They are likely to be more experienced than the property manager or the landlord. The tenants will set up the leasing situation to their own advantage during the lease negotiation.

So the clear message here is that the premises should not be handed over to the tenant until all lease documentation requirements have been satisfied correctly and legally.

Commercial Property Leasing – Pain Points to Lease Negotiation

When leasing commercial or retail premises there are certain points of negotiation that always create pain for the parties concerned. Here are a few of the big and most common ones:

  1. The landlord wants a high starting rent
  2. The tenant wants a big incentive
  3. The tenant wants a huge option term for further potential occupancy
  4. The landlord wants a tenant but is not prepared to provide an incentive to attract them to the property
  5. The last tenant left the premises in a mess and the landlord will not fix it up until a new tenant is found
  6. The landlord will not refurbish the premises before they have a tenant on a signed lease
  7. The tenant does not want to give any form of guarantee as security in the case of any default of lease

These are the most common problems for the average lease negotiation. Most landlords also think that their property is better than anything else around and on that basis will not negotiate down on any rent to get the premises let. So often you hear that the landlord is prepared to wait it out and see what the next tenant will offer.

In this market there are limited numbers of active tenants looking to relocate to new premises. In some cases there can be 5 properties available for every tenant to choose from. Urgency in the lease deal is not high from the tenant’s perspective; landlords need to know this. They may only get one tenant to make an offer for the premises.

When it comes to leasing premises it is not where you start your lease and rent, but it is more important to know where you are headed and where you will finish. Rent reviews during the lease term can take care of rent escalation to improve the lease, providing the real estate agent negotiates the lease well.

So what can you do with this list of common leasing problems? The best way is to use the pain of the vacancy (in the case of the landlord), or the pain of the need for new premises (in the case of a tenant) to move the deal forward. You should work with the offer that you have and not hope that another will come again soon to replace a low offer today.

Take today’s lease offer and turn it into a valuable lease over the term. Show the landlord the real value of the lease by doing an analysis of the deal using a net present value approach on the lease cash flow over the lease term. It is remarkable how the landlord will soften their negotiation position when long term lease value is explained in numbers.