Struggling tenants sometimes must prioritize which creditors to pay each month. If they think you'll put up with late rent, they may put you at the bottom of the list. If you don't want to lose the tenant for some reason—for example, the loss will upset the tenant mix or co-tenancy rights of the other tenants at your center or you're having trouble leasing up your office building—you may be tempted not to take any action the first couple of times that the tenant is late with its rent and hope that it'll start paying on time again.
Rent abatement clauses spell out the circumstances under which tenants are entitled to withhold rent. But if you don't draft them carefully, you may overlook specific items that can affect you later if the tenant exercises its right. Here are four Dos and Don'ts to follow to avoid omitting commonly overlooked details. Ask your attorney about including the provisions below in the rent abatement clause in your lease.
Commercial real estate law has been applied largely the same way for hundreds of years, since feudal times. But a recent opinion by the Court of Appeals of New York, regarding a dispute between a Manhattan movie theater tenant and the owner of the building where it rented space for its multiplex cinema, has dramatically changed the amount of leeway owners will have when making unauthorized changes to tenant-occupied space.
Although most leases give tenants the right to a rent abatement when their office or retail space becomes unusable after a fire, flood, or similar casualty, they fail to adequately define when the abatement period will end. Merely saying that the abatement period will continue until the space is no longer “unusable” is vague, and gives the tenant ammunition to take advantage of you. Plug this loophole by placing limits in your lease specifying how long the abatement will last.
Renting to a tenant on a percentage rent basis can be rewarding if the tenant operates a profitable business—and accurately reports its gross sales. The higher the profit, the higher the amount you can collect from the tenant. But if the tenant underreports its sales, you'll get paid less than you are entitled to under the lease.
Given the current state of the economy, it is not surprising that tenants struggling to stay in business are resorting to rarely used negotiation tactics to ride out the downturn. Specifically, there has been a rise in rent relief exchanges, in which owners temporarily reduce rent for tenants in exchange for taking back certain lease rights the tenants would otherwise be entitled to.
Bounced rent checks are a major hassle. Your bank will charge you a fee for a bounced check, and then you will have to spend more time actually collecting the rent from the tenant. Also, by the time you redeposit the bounced check or get a new one from the tenant, the rent is way overdue.Standard lease remedies often are no help, and it may not be in your best interests to use harsher remedies like terminating the lease and evicting a tenant. And collecting damages from the tenant may not be enough of a deterrent to stop it from being careless and/or bouncing another check.
If you're like most owners, you're searching for new leasing strategies to increase your rent revenues. Here's one to consider if you're negotiating a percentage rent lease with a retail tenant that doesn't have a lot of negotiating power, suggests Florida attorney Oscar R. Rivera: Have the lease say that if the tenant pays percentage rent in a given lease year, in the following year it must pay a new annual minimum rent that includes that percentage rent.
