lease

What is a Default Notice in a Commercial Real Estate Lease?

A default notice is a document served to a tenant or landlord to notify them that they have not complied with one or more obligations in their lease. Something important to note about a default notice is that it is NOT an eviction notice, but it would be unwise to ignore it because the consequences could be significant. The purpose of the document is to let a party know what the particular problem is and a time frame in which it needs to be remedied. If the problem isn’t remedied within the specified period then action may be taken. What sort of action is taken? That depends entirely upon the scenario and the way the lease is written.

The most common default notice is served to tenant’s is for non-payment of rent, however, there are many more reasons a tenant may receive such a notice. To name a few other potential issues that could require a default notice would be to repair damage caused to the property by a tenant, to comply with parking requirements as per the lease, to cease an activity that isn’t permitted in the lease etc. The type of action that would be taken by a landlord if a tenant doesn’t remedy a default really depends on the scenario and the wording of the lease, but, failing to remedy a default that a landlord considers to be a serious issue could have some significant consequences such as eviction and/or legal action. If you have been served a default notice by your landlord it would be wise to start some dialogue as you work towards your solution. Ignoring such a notice would give the landlord the impression you aren’t even making an attempt to correct the problem which would likely motivate them to take serious action at the earliest possible opportunity.

Can a Landlord be served a default notice? Yes. While most commercial leases are worded to be pro-landlord (because it’s their property) there should be wording that also protects the tenant to ensure the property functions as it should in order for the tenant to operate their business as intended. An example of a default notice a tenant can serve the landlord is if a landlord has not completed work stated in the lease, for example if the landlord fails to install roughed in plumbing they promised in the lease then the tenant can service notice to the landlord to remedy that. The types of action a tenant can take if a landlord defaults varies depending on the type of issue and the wording of the lease.

While there are many reasons a default notice can be served, it shouldn’t always be the first action taken especially for non-serious issues. Most times some regular communication between landlord and tenant can prevent problems from forming to begin with and having that kind of landlord/tenant relationship is ideal to maintain if possible.

Industrial Building for Lease in Beamsville - 4306 Bartlett Road

Welcome to building B at 4306 Bartlett Road in Beamsville, Ontario. The location is minutes from nearby highway access at QEW and Ontario Street, and, Beamsville is a great in between market for industrial or warehouse tenant’s that cater to both Niagara as well as Hamilton and GTA markets due to it’s proximity to both.

The building itself features a very wide grade level door, a common loading dock, and approximately 16 ft. clear height. The building is expected to be available for occupancy around October 1, 2019 after the current tenant vacates and the landlord can complete some work on the building.

Prior to occupancy the landlord plans to insulate the building, bring in a bathroom, and equip it with a 3 phase power supply. For tenant’s that don’t require some of those features or are willing to use common washrooms instead we can discuss some flexibility in the rental rate.

Industrial buildings for rent in Niagara this size with a loading dock really don’t last long on the open market, especially at these rental rates. It would be ideal to act quickly before someone else takes, space like this is in high demand. Contact me if you have questions or interest.

Why are Commercial, Industrial, and Office real estate leases so long?

“Why is this lease so long?”, “Is all of this wording really necessary?”

I get questions like this from either new businesses, or businesses that have come from a building that simply had a very relaxed leasing policy. More often than not, a relaxed leasing policy and short lease documents that lack detail cause problems.

A commercial real estate lease should be very detailed about the relationship between landlord and tenant. Not only should it contain important details about the deal such as lease term, start date, rental rates, size of premises, use, etc, but it also needs to have details about rules on the property, insurance requirements, types of action that can be taken in the event of a default, environmental responsibilities, and so on. The list is actually quite extensive for what can be contained in a commercial real estate lease which is why most documents are dozens of pages in length. My document often ends up between 30-35 pages depending on the tenant, building, landlord, type of lease, zoning, etc. While many tenant’s may think that’s a long document, I feel each point is necessary and would have difficulty shortening it. I would actually have an easier time finding content to add than take away.

Back to the questions, why are leases so long and is it necessary? If a tenant asks that question and I look at the building they’re in, I likely see issues such as poor maintenance, poor parking arrangements, structural issues, driveway pothole and access issues, and tenant conflicts. A properly written lease document that can address those issues and is enforced by the landlord and tenant ensures fewer issues for both parties. A lengthy lease should be considered as necessary by both parties because leases should be designed to protect the interests of both landlord and tenant. Yes, leases by default are naturally pro-landlord, but that’s because it’s their property. That doesn’t mean there isn’t or shouldn’t be protection for tenant’s so that is something you need to look for and ensure is in your lease. The landlord’s I represent take good care of their buildings because the lease requires them to. This allows the tenant’s to use the property as efficiently as possible to run their businesses, as long as they follow the rules with the other tenant’s. This is the ideal situation for everyone.

Every clause in my lease has a reason and my document is updated when new industry trends occur or new issues are discovered in the marketplace. Each clause has a purpose because at one point it was created to correct a problem or properly define something.

So is all that wording necessary? Absolutely. As long as it reflects the needs of your business and protects the interests of both parties, every clause should be seen as necessary and relevant. Make sure you are represented by a knowledgeable commercial real estate broker to ensure you get what you need from your lease.

What is a rent free period in a commercial or industrial real estate lease and how do you achieve one?

A commonly requested or negotiated item in commercial real estate leases is a rent free period. Depending on market conditions for the type of space or building you’re looking to lease you may be able to achieve one.

A rent free period is a defined period where the tenant does not pay rent either prior to their lease term or at the start of their lease term. How much rent free to ask for is usually dependent on market conditions and the reasons for needing a rent free period. For Example, an office or industrial tenant looking to build out a new floor plan of offices might need 2 months to complete the work at their cost, and in turn would ask if they could achieve two months rent free to make the transition smoother. A landlord might see this as a reasonable request dependent on market conditions and the length of the lease term.

Speaking of the lease term, a rent free period is usually not considered unless you are signing a longer term lease, which in current market conditions is usually around 5 years depending on the landlord, property, and the reasoning. If you are not prepared to offer a lengthy commitment, it would be wise to not request a rent free period as you would be seen as unrealistic. It would also be wise to not request too much rent free period for the same reason unless it’s a very unique deal that warrants it.

There are also different options for a rent free period. In the situation of a triple net lease for example, some landlord’s may only agree to giving base rent free, meaning the tenant would still pay their proportionate share of property expenses through TMI, CAM, or additional rent depending how the lease is worded (this is common practice and considered a reasonable request).

There is also the option of having a rent free early occupancy period or a rent free period at the beginning of the lease term. If your lease starts February 1, 2019 and you have one month rent free early occupancy, your rent free period would be for the month of January before your lease starts. If it is rent free within the lease, it would likely make February the month you have free. What is agreed is usually a matter of preference between landlord and tenant. For landlord’s, it’s usually more of an advantage to have rent free early occupancy because if you have a 5 year lease, you still get the full 5 year term whereas with rent free within lease, the beginning of the term is eaten up with the free period.

A rent free period is a common negotiating tool for commercial, industrial, and office building leases, but it has its limitations in many markets and not all landlord’s consider it. Because it’s an incentive there may also be a claw back clause in the lease for that incentive in the event the tenant defaults. If the landlord agrees to a rent free period it’s because they feel there is a legitimate reason for the timing of the request and that it benefits their long term big picture of their investment property.

In the current Niagara industrial market, in particular St. Catharines, space is tight so rent free incentives usually aren’t very long if considered. Rent free on a commercial retail space is dependent on building and scenario and office buildings usually have consideration for it if the tenant intends to do their own improvements and alterations to the space.

To make sure you’re getting the best advice on rent free incentives, make sure you’re speaking with a knowledgable commercial real estate broker for the market that you are in.

Are you an industrial tenant that can't find a building in Niagara?

If you’re an industrial tenant in St. Catharines or Niagara looking on commercial listing websites and noticing nothing with your criteria is coming up or if you’re calling real estate offices with similar results, that’s likely because there aren’t any… at the moment.

The best thing you can do is speak with a reputable commercial real estate broker and let them know what you are looking for and how long you can wait for it. I have conversations daily with tenant’s expressing this frustration, but, sometimes there is a solution if you talk to the right people. I have a database of properties that have leases coming due on the regular. Sometimes I have a creative solution. A conversation with the right commercial real estate broker can make a difference.

I had a conversation with an industrial tenant the other day discussing their timing and expansion options. I happened to make them aware of a building we can pursue in a few months with expansion options a year from now, an option he wouldn’t know about unless that conversation happened.

Right now I’m keeping tabs on the tenant’s looking and when availabilities come up I like to make them aware of it. If you want to be one of the tenant’s that benefits from opportunities that can be created by a commercial broker, please contact me. Don’t expect residential Realtor’s to be of the same level of assistance, their knowledge is usually limited to what is available right now, which isn’t much.

The difference between loading docks and grade level doors in industrial real estate.

I've heard tenant's and landlord's use grade level door and loading dock interchangeably as if they are the same thing. They are not.

Most industrial buildings, units, or space for lease contains a grade level door. It would be rare if a building wasn't equipped with one as they are a standard useful feature. A grade level door opens and closes down to the grade and if that sounds confusing just replace the word grade with ground. The door is level with both inside and outside ground so as you can easily move objects through in and out. Most times these doors are large enough for vehicles to drive through which is an important feature for many tenant's.

The loading dock is different in that the door is truck level and acts as a dock to safely move between building and truck trailer. A transport truck can back its trailer into a loading dock and when parked, it should be possible to enter the truck through the warehouse by flat surface. This makes it possible to load and unload goods quickly, especially with the use of a tow motor or fork lift. Unfortunately loading docks are in demand but have low supply, especially for industrial units under 10,000 sq ft. Compared to grade level doors a loading dock is not cheap or easy to install which is why they are more rare. A property needs to be able to handle truck access to back into a dock as well.

In St. Catharines and the Niagara region it is unfortunately difficult to find loading docks in our current supply of industrial buildings. While there are currently and abundance of grade level doors, it would be good if developers and building owners started recognizing the shortage of loading docks to ensure they are a more common feature for warehouse and distribution tenants needing to rent warehouse space with that feature.

What expenses can be used in TMI, CAM, or Additional Rent in a commercial real estate lease?

What should be used as a TMI expense is dependent upon how the lease is written, but, the vast majority of the time I write triple net leases and I know most commercial and industrial landlords and practitioners prefer triple net leases where they can be applied, The list below is based on a triple net scenario and isn’t limited to what is listed:

1) Landscaping - The property needs to look well maintained to make a good first impression in a business situation. Lawn cutting, gardening, weeding, tree and bush trimming, litter pick up, and so on can be a landscaping expense.

2) Snow Removal - If you live in a province or state that gets snow, snow removal contracts are a necessity for commercial and industrial properties to ensure businesses and customers have a place to park. Salting and Sanding also falls into this category.

3) Parking Lot Repairs - Parking lots function and look best when the pavement is smooth and free of potholes.

4) Roof Repairs and Maintenance - There are various things that can cause a leak in the roof but leaks tend to occur most towards the end of the roof life. Fortunately repairs can be made and the roof can often be functional for years longer with proper maintenance. There will reach a point where repairs won’t work and a full replacement will be necessary.

5) HVAC Maintenance and Repairs - To ensure the longest life and most efficiency of your HVAC units you should have a regular maintenance contract. A few visits a year from an HVAC technician to keep the unit clean and running smoothly is a wise idea.

6) Outdoor and Common Area Lighting Costs - Tenant’s and Customers definitely appreciate it when coming and going during darker hours of the day, and, having a lit building is a bonus security feature.

7) Property Management and Administration Costs - Property management takes time and money. It would be rare to see management fees higher than 15% of the property expenses but this depends on the landlord and management company.

8) Elevator Maintenance - Elevators require monthly maintenance contracts to remain operation.

9) Waste Removal - If you have common waste, recycling, or compost bins for tenant use.

10) Outdoor/Common Walkways, Ramps, or Stairs - Need to be maintained to code for safety.

11) Fire Prevention - For buildings with sprinkler systems, common area alarms/detectors, these are items that have maintenance costs. Depending on the situation, most times tenant’s would have alarms/detectors in their own units at their own expense.

12) Security Systems - For common areas only. Tenant’s should do their own monitoring for their own unit.

13) Electrical - Maintenance of the electrical room or main transformer.

14) Water - Most units of commercial and industrial buildings don’t have a separate water meter. Water costs should be added to the TMI in this situation, except if there is evidently a tenant that uses more than the others, a fair approach to billing should be made.

15 Insurance - For building and land. Tenant’s should be providing their own content and liability insurance as per the lease.

16) Property Taxes - The largest and most obvious expense.

This list can and will be more extensive in the future, but for now this is a good base guide.

Depending on the wording of your lease you may be able to amortize capital improvements over a longer term. The default wording of my lease allows for roof, HVAC, and parking lot replacement costs to amortized over 10 years but this isn’t used in all documents.

If you’re a client of mine that needs some assistance with best TMI practices I have no problem offering that help. Make sure you work with a Realtor that knows all of the expenses that need to be accounted for.

12 important things to consider when you search for industrial real estate for lease

Industrial Warehouse

Industrial Warehouse

Searching for the ideal industrial building for your business goes beyond finding something that is the ideal size and budget. There are a number of features to consider in your search for industrial space for lease to ensure your term in the building is a comfortable one. Below are important criteria to keep and mind and consider in your search for industrial property, none of these are in any particular order.

1) Clear Height - Having a space that is an adequate size in footprint is useless if it doesn’t have an adequate clear height to rack your inventory high enough that you won’t run out of space. Generally speaking, if you’re a warehouse and distribution tenant, having more height allows you to rack higher and save on the number of square feet you occupy. Higher clear height often creates an opportunity to use your space more efficiently by racking up rather than expanding outward.

2) Power Supply - If you manufacture or use a lot of computers and equipment to run your operation you will want to ensure the space you are planning to lease has an adequate power supply. If your business has a requirement for 3 phase power you will want to make sure the unit is equipped with it.

3) Loading Docks - Another popular feature among warehouse and distribution tenant’s is loading docks. Loading docks are truck trailer height and allow for easy movement of inventory on and off of trucks. Unfortunately not all industrial buildings in Niagara have loading docks, in fact we likely have a shortage in comparison to other areas of the province and country. It can take a bit longer to source a building with loading docks, especially if you’re looking for something under 10,000 sq. ft. in St. Catharines or the Niagara Region. If you’re looking to relocate soon and loading docks are a priority, you may want to start your search earlier just in case.

4) Grade Level Doors - Unlike loading docks, grade level doors open at ground level, not truck trailer level. These doors are more common than loading docks and most industrial buildings have them. These doors are used by most industrial businesses however shipping and receiving inventory through them isn’t nearly as easy as using a loading dock. It’s important to make note of the sizes of grade level doors if you have larger items coming and going.

5) Location - Most industrial operations ship and receive goods by transport trucks so a location with close proximity to the highway is usually preferred. Ensuring the location is easy to get to for trucks is important. If you have a lot of employees you may want to locate somewhere with access to public transit. Some operations may prefer to have a rail spur or access to a waterway for shipping. Some industrial businesses are noisy or produce a strong odour which would be a good reason to locate somewhere a little isolated away from housing and other businesses. These are items to consider based on the demands of your business and a good industrial agent can help you find what’s best.

6) Truck Access - Further to the point above you need to ensure the property itself can allow for the proper flow of trucks to ensure shipments and deliveries come and go as you expect them to. There are some poorly designed properties that make it very difficult for trucks to come and go as they should and those properties should be avoided.

7) Type of Heating - The two most common forms of heating in industrial buildings is either forced air gas or radiant tube. Usually it’s a matter of preference but there are some businesses that can’t work with one or the other for various reasons. In terms of efficiency, in a warehouse setting many operations tend to have a preference for radiant heat as it heats the surfaces and not the air, that way when someone opens a grade level door you don’t lose all your heat.

8) Parking - If you have a lot of employees and a good portion of them own vehicles, you need to ensure the building you have selected has enough parking capacity, otherwise you can run into an issue.

9) Office Space - Most industrial businesses have some requirement for office but not all. For those that do, the space space is rarely more than 10-20% of the total size of the unit. You won’t find exactly what you’re looking for so it’s best to keep the big picture in mind and ensure the industrial/warehouse portion of the space meets your needs more than the office. The office is an after thought that can be modified if necessary.

10) Column Spacing - Depending on your equipment, the flow of your manufacturing, the type of racking you have etc., you may need to keep the distance between columns in mind. For example, if you need to fit a 25 foot machine in between columns that are only 20 feet apart, you have a problem. It’s important to share minimum column spacing requirements with you Realtor to keep note of in the hunt for space.

11) Plumbing and Drainage - Aside from needing a washroom and a kitchen, some industrial operations require additional plumbing and drains throughout their unit. Make sure the buildings you have focused on can have plumbing and drains where needed for your business to function as it should.

12) Work with a Commercial Real Estate Agent - I’ve complained about this in other blogs and I can’t state it enough, now is not the time to hire the agent that sold your house. If you expect knowledge and competence when making a major commitment to a long term lease, you want to ensure your requirements are fulfilled and you want your interests protected. The best way to do this is to hire a commercial real estate agent who has the knowledge, skills, and experience in industrial real estate leasing to help you pull that off. Using an agent that sells houses and doesn’t possess those qualities can create a lot of headaches and unwanted problems during the process and well after the move.

If you want to know more about finding the ideal industrial building please don’t hesitate to reach out and ask questions.

What is an Indemnifier, Guarantor, or Personal Guarantee in a Commercial Lease?

This is a common sticking point when negotiating a commercial lease. It seems like every landlord wants it and every tenant doesn't. Unfortunately most tenant's don't understand what it is and why a landlord may want it.

A simple way to put it, the person who signs as an indemnifier or a guarantor is giving their personal guarantee to the landlord that the tenant (a business) will fulfill the obligations of the lease. The most likely person to sign an indemnifier is a company owner or branch owner. In the event the tenant does not fulfill its obligations to the lease, the indemnifier is expected to. This would include but isn't limited to rent owing, property damage, environmental contamination, and other terms of the lease. You can see why some people are hesitant to sign it, it can be an intimidating commitment... Then again to some tenant's this is just a requirement of doing business and in some situations, you may have no choice.

Why does the landlord want an indemnifier? It's added security to the lease.

Some landlord's don't care about getting an indemnifier unless they are spending money for the tenant or providing other forms of incentives to the tenant. Having an indemnifier gives them a warm and fuzzy feeling that they will likely recover those costs or incentives. Some landlords feel they have a premium property and/or management service and that requires a premium commitment from a tenant in the form of an indemnifier. And some landlord's just demand it regardless of tenant, building, location, and management style. Whatever the scenario, if you have a landlord demanding it, you may not have a way around it if this is the building you want to be in.

What is the concern from tenants? A tenant that is confident in their business and finances may not care and just see this as a requirement of doing business. Tenant's that feel less secure may worry about the worst case scenarios that could unfold. What if a business fails 2 years into a 5 year lease? That's a lot of rent to be on the hook for personally if the business failed. On that note you can see the wheels spinning in the tenant's head with all the possible scenarios that could unfold and that can make a person paranoid and reluctant to sign as an indemnifier, often killing a deal.

Not all landlords want an indemnifier to rake them over the coals. Landlords are often human beings too and many of them understand shit happens and hard times come. If a tenant finds themselves struggling but keeps an open dialogue with their landlord about their concerns there may be an alternative solution.

What are some alternatives to signing an indemnifier or personal guarantee? Just because a landlord demands an indemnifier it doesn't mean it needs to be black and white. You could ask if the landlord would entertain a limited indemnifier for either a limited period of the lease, or set a maximum dollar limit the indemnifier would be responsible for. For example a tenant could propose that they would be willing to indemnify 3 out of the 5 years in their lease, or, if the landlord spends $10,000 on leasehold improvements for the tenant then the landlord can recover a maximum of that amount or penalty with a different dollar value. You could also see if the landlord would take a larger security deposit instead. These are just a few scenarios that can be crafted as an alternative.

If you are a tenant already in the middle of a lease, don't forget that most leases provide an opportunity to sublease or assign your lease and that can sometimes be used to help get an indemnifier out of a financial bind, but not always.

Regardless of your approach to indemnifying a lease, it's important to keep in mind that you are using someone else's property to do business. If that property owner demands it try to keep in mind that this is a common request. If you were to lease or purchase a car, or lease or purchase a house, these are big ticket items and the companies or parties selling, leasing, or financing these big ticket items all want some form of security to give them the warm and fuzzies that you will fulfill your obligations in the agreement. If you have no problem providing additional security for those scenarios, why not to your commercial landlord as well?

If you have questions about being an indemnifier or a guarantor on a lease it might be best to speak with a commercial real estate lawyer to get the advice you need.