Commercial Real Estate Minefields – Read the Fine Print!

Topic: Running a Business

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When a client came to attorney Oscar Rivera asking him to force a guy to sell him a hotel, Rivera was up a creek.

The problem: the client drew up his own contract to buy the property and then the seller changed his mind.

“It was a horrible contract,” says Rivera, head of the real estate department of Siegfried, Rivera, Lerner, De La Toree & Sobel, in Coral Gables, Fla. Startups should hire an attorney before even looking for commercial property to buy or lease, he says.

“The buyer wanted to see if we could default the seller and force them to close. Had that contract been drafted better, he would’ve been in a better position – as opposed to filing a lawsuit and spending $50,000 in legal fees when we don’t even know if we’re going to win,” Rivera says.

This is a typical scenario in the world of commercial real estate when companies don’t pull together the best team to guide them through the process. Don’t stop at hiring a lawyer; find a specialized broker, tax planner, engineer or licensed inspector and environmental consultant to share expertise, help you find the right property and ensure you claim it quickly and painlessly.

Learning lease lingo

Unlike buying a home, almost anything goes in the world of commercial real estate. Rivera warns that if you don’t negotiate, you’ll be taken for a ride. “Everything is open to negotiation,” he says.

Attorney Scott Jordan agrees. Commercial leases are short and often require tenants to assume responsibility for repairs and maintenance to the roof, air-conditioning, sewer systems and doors, he says. All those are negotiable -- if the roof needs to be replaced in five years and you’re signing a 10-year contract, Jordan advises “obtaining a rent concession from the landlord to cover the roof or negotiate out your responsibility to repair it.”

In a commercial real estate deal, “base rent payment” refers to a small portion of what you’ll actually shell out, says Jordan, head commercial real estate counsel with the Ft. Lauderdale law firm, Tripp Scott. You’ll also pay taxes, rent increases and a percentage of general maintenance and other bills.

Look for, and understand, these terms:

  • Actual minimum monthly base rent payment: This is just the start of what you’ll pay.
  • Percentage rent: Payments based on a percentage of your company’s revenue.
  • CAM : Common area maintenance expenses – usually associated with a shopping center.
  • Insurance: Wind/storm, flood zone, title insurance and more.
  • Real and personal property taxes , sales tax , and everyone’s favorite, late fees.

Also, when you first visit the space, bring a tape measure to map out the exact footage you’re going to lease, because commercial leases are usually based on a per-square-foot number. If the landlord’s charging you for 3,000 square feet, measure it yourself to know that’s what you’re getting.

It’s not a home loan

While you might mortgage your house at a fixed interest rate over a period of 30 years, banks don’t do that with commercial property. These loans are more likely to be 10 years at the outside, but probably less.

And many commercial loans require the head of the company to personally guarantee the transaction, Rivera says. That means putting up company assets as collateral for the loan.

No disclosures are required in commercial transactions, as they are with home loans. But many banks require an attorney to write an opinion letter, certifying and assuming liability, and that your company is legit and has the authority and ability to assume the loan, Rivera says. Those letters can be very long.

Know the tricks of the commercial real estate trade

There are some other things worth knowing about putting together a smart real estate deal for your new business home. They could save you thousands of dollars in the long run, so take the time to think through these tips:

  • Investigate: You have 20-40 days after agreeing to buy or lease the property to check it out. Hire a certified inspector, look at business records and address environmental concerns.
  • Appraise : Even if you’re plunking down cash to buy a space for your business, get it appraised. You don’t want to overpay. (Banks typically lend about 75 percent of the appraised value on an owner-occupied property.)
  • Not everybody’s green : Environmental consultants research the previous uses of a property. If there are, or were, underground storage tanks, they’ll test for contaminants. Think very hard before taking on a property that’s environmentally unsound.
  • Take ownership: Decide exactly who will own the property. Jordan advises creating a separate company to be the property owner, so if your business goes under, you’ll still have the real estate as an asset.
  • Do not disturb: Get a non-disturbance agreement from the bank if your landlord still has a mortgage on the property. This keeps you out of any of his snafus, such as foreclosure.

Listen to your experts’ advice, and follow these guidelines. Moving day isn’t the end of the deal, it’s just the beginning.

Lynne Meredith Schreiber is a freelance writer for StartupNation.


Next: Get the Taxman to Smile on Your New Business Home

Comments

GarrettK GarrettK Posted: 3/31/2008 1:08:30 PM

For long term leases, make sure you attempt to cap tax and operating expense throughs at 3-5%. If a building sells or goes through extensive remodeling, these costs can be a big hit to a companies...

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