Tenants Must Beware of the Hidden Costs Often Found in LeasesIn this day of concern about operating costs, tenants should be wary of hidden expenses in leases.
Basic rent is not the only cost. In fact, the items often labeled as “additional rent” may approach, if not exceed, basic lease payments.
Additional rent expenses such as real estate taxes, special district taxes, insurance, and other operating expenses are often charged and apportioned based on a tenant’s proportionate share of the square footage of a building. There are several items of concern with additional rent. Here are some that all business owners should be aware of, and they are often in the form of questions that must be answered:
• How is proportionate share calculated? If based on square footage, what system has been used (BOMA or other standard)? Has the space in fact been measured? Tenants should attempt to have the space measured or reserve the right to do so, and if there is a variance of say 3% of the lease square footage, the landlord should pay for the measurement, and, of course, the payments should be adjusted.
Also, are these costs to be calculated as an increase above an agreed base year and, if so, is it a calendar year or a tax fiscal year?
• Are “operating expenses” clearly defined in the lease? Are they for services provided by unrelated third parties? Not infrequently, these services are provided by a related company at costs that exceed market rates. Do operating expenses include depreciation or replacement of capital elements of the property? If they do, these costs might easily exceed basic rent.
What is of further concern is that the lease may say the landlord is responsible for capital repairs, but yet the additional rent provisions will attempt to pass on these costs to the tenant. Furthermore, tenants should reserve the right to audit all operating expenses, and again, if there is a 3% or more variance, the cost of the audit should be paid by landlord, and, of course, the payments should be adjusted.
• Tenants need to be careful in negotiating maintenance, repair, and replacement obligations. The elements of the leased premises that the tenant is required to maintain need to be carefully detailed. Avoid provisions that say the “interior of the leased premises and all elements therein” as a standard for the tenant’s obligations. This standard could easily require maintenance and repair to major mechanicals and HVAC systems, the costs of which could far exceed basic rent.
Care should be taken not to agree to “replace” the interior elements, because the cost of doing so for plumbing, HVAC, and electrical equipment could be quite high. In addition, replacement provides a windfall for landlords, because the elements so replaced easily could have a useful life far exceeding the lease term.
• Lastly, but not finally, care should be taken when agreeing to have either basic rent or operating-expense rent increased by rises in the so‑called “cost of living.” The standard measures for these increases are published by the U.S. Bureau of Labor Statistics and vary by region and by a description of the items in the shopping cart that are being measured. Energy costs and medical expenses tend to artificially inflate these indices, and every attempt should be made to use an index that does not use these highly volatile categories.
Though it is difficult to anticipate all potential hidden costs in a lease, a careful reading of the document and a successful negotiation can limit a tenant’s exposure to them and avoid unpleasant surprises.
Attorney Stephen A. Shatz, a shareholder with the Springfield-based firm Shatz, Schwartz, & Fentin, concentrates his practice in the areas of real estate development, real estate finance, and commercial leasing. He is a New England Super Lawyer in the field of real estate, 2004-present; (413) 736-0375.