Posts Tagged 'tenant'

Do Corporate Tenant Real Estate Advisors Go Too Far?

Do corporate tenant real estate advisors go too far?  Some landlords think that those real estate professionals who advise corporate tenants, often over-negotiate lease transactions on behalf of their tenants.

Is this just sour grapes? Is it  because landlords don’t like negotiating with tenant advisors who understand the commercial real estate game and put money back into the pockets of their corporate tenant clients?  Is this because landlords don’t like the idea of paying commissions to tenant advisors who negotiate against them? Or, is there truth to this…that corporate tenant real estate advisors really do go too far when negotiating leases for their clients?

What is going too far, really?  Is it too far when a tenant seeks more than a landlord would prefer to give…more free rent, rent discounts, construction allowances, flexibility, options and rights, favorable terms, or otherwise?  Is it too far when a tenant directs its advisor to negotiate certain terms the landlord may not like?  Is it too far when a tenant advisor does all he / she can to achieve the best terms for his / her client?

When landlords feel that tenant advisors go too far, could this really be more a matter of market conditions?  If a landlord’s competitors will not support the terms a tenant seeks, can that tenant realistically expect to achieve such goals? Not likely.

I’ve heard some landlords complain that tenant advisors unfairly fill the heads of executives with the idea that corporate tenants are entitled to all kinds of goodies when negotiating leases.  They often say that this practice is unreasonable, as it makes negotiations difficult for landlords.

Note to commercial landlords: The role of tenant advisors is not to make transactions easy for landlords…nor, is it to make transactions difficult for landlords.  In fact, the tenant advisor’s role is to enhance and protect the interests of its corporate tenant clients by understanding their business objectives and to recommend transaction strategies and structures that would support them.  The tenant advisor’s role is also to negotiate aggressively to secure as much for the tenant as possible.  Seasoned tenant advisors understand the limits after which they might put their transactional opponent landlords in danger or even jeopardize a transaction.

Just like how the role of landlord advisors is to work to benefit landlords, the job of the tenant advisor is clearly defined.  When a tenant advisor makes demands that a landlord finds too great, perhaps it simply means that the particular transaction just isn’t right for that landlord.

At times when supply is low and demand is high…in markets that are favorable to landlords, do tenant advisors still go too far?  In those markets, I rarely hear such complaints.  When the odds are stacked in favor of landlords, how far would be too far for “landlord” brokers to go?

Do some corporate tenant advisors go too far? I’ll answer that question this way:  Is this really an indictment of all tenant advisors?  Do some landlords and landlord brokers go too far?

About Real Estate Strategies Corporation

Real Estate Strategies Corporation is a respected corporate advisory and transaction services firm that provides thought-leadership, decision-making, planning, project management, and transaction execution services to financial and senior executives at management team-led public, private, and portfolio companies, and not-for-profit organizations.  Under the leadership of its award-winning CEO, Andrew B. Zezas, RealStrat’s clients engage the firm when acquiring, disposing, renegotiating, or enhancing occupied leased or owned real estate in New Jersey, Pennsylvania, New York, Connecticut, and throughout North America. By creating and executing Business DRIVEN Real Estate Solutions and identifying hidden Opportunities, RealStrat drives greater operational and financial performance in support of its clients’ stakeholder objectives, M&A requirements, and exit strategies.

In the current economic environment, RealStrat’s efforts are focused on uncovering, capturing, and re-purposing hidden liquidity and minimizing risk in its clients’ leased and owned real estate.  The firm provides counsel as to competitive advantage strategies in preparation for the eventual economic recovery.  Visit www.RealStrat.com.

Read about timely commercial real estate issues at RealStrat’s blog at www.CorporateAdvisor.wordpress.com. Follow RealStrat at http://www.Twitter.com/RealStrat.

LINKS:

RealStrat News
Biographies
Articles
Properties
What Our Clients Say
AndrewZezas.com

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Copyright Real Estate Strategies Corporation 2011. All Rights Reserved.

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You Don’t Need a Commission Agreement…You’re Covered Under the Leasing Agent’s Agreement!

How many times have leasing agents told me that I didn’t need to negotiate a separate commission agreement at their building, because they’d already made provisions for the payment of my commissions in the representation agreement between them and their landlord?  I’ve heard comments from brokers suggesting that negotiating a separate commission agreement is a waste of time, when the leasing agent’s agreement provides for them. It has been suggested to me that the time spent on negotiating a separate agreement could be better spent on pursuing and closing another transaction.

  • Here are a few questions that I offer in response to the above:
  • Have you read the representation agreement between the landlord and the leasing agent or have you just relied on claims made by the agent?
  • Do you have a complete original copy of that agreement?
  • Is your company a party to that agreement?
  • Would the obligation to pay you be from the landlord or the leasing agent?
  • Are the commission rate, amount, pay schedule, and terms what you expected?
  • Does that agreement afford you the ability to change terms you find to be unsatisfactory?
  • What rights and protections does that agreement specifically afford you?
  • What future benefits does that agreement afford you?
  • If the agreement between the landlord and the leasing agent expires, do your future rights expire, too?
  • If the landlord sells the building, what happens to your future rights?
  • What would happen if the  leasing agent defaulted in its obligations to you?
  • What would happen if the landlord defaulted in paying your portion of the commission to its leasing agent?
  • Would you really want your compensation arrangement to be through the leasing agent, a third-party, or directly with the landlord, who has the true obligation to pay you? (In earlier articles I’ve written, I’ve suggested that brokers pass even the landlord and secure commission payment commitments from building lenders!)

…and, I’m just getting warmed up!

Some landlords and leasing agents have responded to these questions by saying that their state real estate commission affords them protections under many of the above circumstances.  That may be true.  However, do you really want to have to deal with, what are most certainly bureaucratic, rules under your state’s real estate commission and perhaps endure a legal battle to collect what is rightfully yours?  Or, do you really just want to be paid what is due you?

No leasing agent can bind another company, unless that company agrees to be bound.  That’s a fact!  Irrespective of what a landlord or a leasing agent tells you, just because they have agreed on commission terms between them, doesn’t mean that you must accept those terms.

Remember something very important here:  A broker bringing a tenant, or buyer, to a landlord, whether through the landlord’s agent or directly, is the customer of the landlord and its agent.  That’s right! The broker is the landlord’s customer.  The tenant or buyer, in turn, is that broker’s customer.  This is especially true when the broker is authorized in writing to represent the interests of the tenant or buyer.

So, as the customer, the tenant or buyer’s broker has the right to set its own terms of service and the compensation that it will receive. If a particular landlord elects not to buy what the tenant or buyer’s broker is delivering or chooses not to pay the broker’s price, then that is the landlord’s option. And, it is the option of the broker to take its business elsewhere. Or, in such an instance, the broker also may have the option of securing an alternative compensation arrangement with its tenant or buyer. But, no tenant or buyer broker is obligated to be bound by an agreement between landlord and leasing agent if that broker did not agree to the terms of that agreement.

About Real Estate Strategies Corporation
Real Estate Strategies Corporation is a respected corporate advisory and transaction services firm that provides thought-leadership, decision-making, planning, project management, and transaction execution services to finance and senior executives at management team-led public, private, and portfolio companies, and not-for-profit organizations.  Under the leadership of its award-winning CEO, Andrew Zezas, RealStrat’s clients engage the firm when acquiring, disposing of, renegotiating, or enhancing occupied leased or owned real estate in New Jersey, Pennsylvania, New York, Connecticut, and throughout North America.  By creating and executing Business DRIVEN Real Estate Solutions and identifying hidden Opportunities, RealStrat drives greater operational and financial performance in support of its clients’ stakeholder objectives, M&A requirements, and exit strategies.

In the current economic environment, RealStrat’s efforts are focused on uncovering, capturing, and re-purposing hidden liquidity and minimizing risk in its clients’ leased and owned real estate.  The firm provides counsel as to competitive advantage strategies in preparation for the eventual economic recovery.  Visit www.RealStrat.com. Read about timely commercial real estate issues at RealStrat’s blog at www.CorporateAdvisor.wordpress.com. Follow RealStrat at http://www.Twitter.com/RealStrat.

LINKS:

RealStrat News
Biographies
Articles
Properties
What Our Clients Say

Copyright Real Estate Strategies Corporation 2011.  All Rights Reserved.

###

One Page Tenant Representation Agreements Are Useless!

First of all, “Tenant Rep” is simply an incorrect term.  Read about that!

One page commercial occupant representation agreements don’t protect clients or real estate professionals.  They may actually be dangerous!

A commercial occupant representation agreement is intended to reflect the nature of the business relationship between the client (the commercial occupant) and its service provider.   A well-written agreement clarifies the roles, rights, and responsibilities of both parties, and should protect them both.

Commercial Occupant Representation Agreements should clearly define:

  • Who the real estate professional represents
  • The term of the agreement
  • Commencement and expiration dates
  • Services to be performed
  • Events that must occur for the real estate professional to be entitled to compensation
  • The amount the real estate professional will be paid, and by whom
  • A statement about how the receipt of commission by the real estate professional from the landlord will not be viewed as a conflict-of-interest by the client
  • A mechanism for identifying and resolving conflicts-of-interest
  • A provision to extend the agreement
  • Obligations of both parties on termination and post-termination
  • Default, cure, and termination provisions
  • Authorization for the real estate professional to deal with the client’s other service providers
  • Statement that the agreement is governed by the laws and courts of the appropriate state
  • Statement that the parties to the agreement are authorized to enter into it
  • Entire agreement, no amendments except in writing
  • And, don’t forget all that other legal text that’s typically associated with service agreements that, while often lengthy, is intended to protect both client and service provider.

*** The above is not intended to represent a comprehensive list, nor am I practicing law by providing it.  Consult an attorney before drafting or executing an contract or agreement.

Since there exist more issues that are not reflected above, how the heck can you get all that is necessary onto a single page and make it an effective agreement for you and your client?

For your sake, and that of your client, hire an experienced commercial real estate attorney to draft a great document that protects you and your clients, learn how to present it effectively to your prospective clients, and then go make incredible deals for them!

About Real Estate Strategies Corporation
Real Estate Strategies Corporation is a respected corporate advisory and transaction services firm that provides thought-leadership, decision-making, planning, project management, and transaction execution services to finance and senior executives at management team-led public, private, and portfolio companies, and not-for-profit organizations.  Under the leadership of its award-winning CEO, Andrew Zezas, RealStrat’s clients engage the firm when acquiring, disposing of, renegotiating, or enhancing occupied leased or owned real estate in New Jersey, Pennsylvania, New York, Connecticut, and throughout North America.  By creating and executing Business DRIVEN Real Estate Solutions and identifying hidden Opportunities, RealStrat drives greater operational and financial performance in support of its clients’ stakeholder objectives, M&A requirements, and exit strategies.

In the current economic environment, RealStrat’s efforts are focused on uncovering, capturing, and re-purposing hidden liquidity and minimizing risk in its clients’ leased and owned real estate.  The firm provides counsel as to competitive advantage strategies in preparation for the eventual economic recovery.  Visit www.RealStrat.com. Read about timely commercial real estate issues at RealStrat’s blog at www.CorporateAdvisor.wordpress.com. Follow RealStrat at http://www.Twitter.com/RealStrat.

LINKS:

RealStrat News
Biographies
Articles
Properties
What Our Clients Say

Copyright Real Estate Strategies Corporation 2011.  All Rights Reserved.

###

Tenant Representative…Is that really the correct name for what I do?

Tenant Representative…Is that really the correct name for what I do?

For years I’ve been called a tenant representative.  That’s a prevalent term used by many in commercial real estate.  Tenant representatives are most often defined as real estate professionals, advisors, and brokers, who only represent the real estate interests of commercial tenants.  Full-time tenant representatives don’t typically represent landlords or others who are in the business of real estate. Tenant representatives prefer to remain on one side of the transactional equation, most often for the purpose of transparently representing the interests of their commercial clients, so as to minimize the probability that they might become embroiled in a conflict-of-interest.

Some full-service real estate professionals, those who offer services to tenants, landlords, investors, developers, buyers, sellers, sublandlords, subtenants, and others, claim to provide tenant representation as one of their often very large bundles of service offerings.

When it comes to avoiding conflicts of interest, I’m not quite sure how full-service real estate professionals can truly be transparent and protect their clients.  The myth of the existence of so called “Chinese Walls” in real estate brokerage companies is a total joke.  I’ve never seen one such company that keeps tenant representatives in a separate building from their landlord brokers, or one that maintains separate databases not accessible by the other side.  In fact, in most states, the senior real estate licensee of the company is responsible for all transactions completed by that company.  So, how can one individual be responsible for both tenant representation and full service engagements while, at the same time, remaining transparent and balanced, and avoiding conflicts-of-interest for the company’s clients?  But, that’s an entirely different story!

The issue here is whether or not the term “Tenant Representative” is accurate.  The word “Tenant” refers to a lease by an occupant for property owned by a landlord. Many companies consider leasing vs buying.  With recent prices for commercial real estate as low as they have been lately, many companies are asking if they show own or lease.  Furthermore, if changes in lease accounting rules  proposed by the Financial Accounting Standards Board and the International Accounting Standards Board are passed (many expect those rules will be passed), the financial reporting differences between leasing and owning will almost be eliminated. So, even more companies will likely consider ownership over leasing in the near term.

Considering that the role of a real estate professional is to advise his or her clients about opportunities to achieve their real estate and business objectives, don’t most tenant representatives help their clients compare leasing to owning real estate?  And, don’t some of those clients purchase real estate instead of leasing?  When a company owns real estate, are they a tenant?  So, does the term “Tenant Representative” accurately apply?

Introducing….”Commercial Occupant Representatives”…at your service!  Does that work?

About Real Estate Strategies Corporation
Real Estate Strategies Corporation is a respected corporate advisory and transaction services firm that provides thought-leadership, decision-making, planning, project management, and transaction execution services to finance and senior executives at management team-led public, private, and portfolio companies, and not-for-profit organizations.  Under the leadership of its award-winning CEO, Andrew Zezas, RealStrat’s clients engage the firm when acquiring, disposing of, renegotiating, or enhancing occupied leased or owned real estate in New Jersey, Pennsylvania, New York, Connecticut, and throughout North America.  By creating and executing Business DRIVEN Real Estate Solutions and identifying hidden Opportunities, RealStrat drives greater operational and financial performance in support of its clients’ stakeholder objectives, M&A requirements, and exit strategies.

In the current economic environment, RealStrat’s efforts are focused on uncovering, capturing, and re-purposing hidden liquidity and minimizing risk in its clients’ leased and owned real estate.  The firm provides counsel as to competitive advantage strategies in preparation for the eventual economic recovery.  Visit www.RealStrat.com. Read about timely commercial real estate issues at RealStrat’s blog at www.CorporateAdvisor.wordpress.com. Follow RealStrat at http://www.Twitter.com/RealStrat.

LINKS:

RealStrat News
Biographies
Articles
Properties
What Our Clients Say

Copyright Real Estate Strategies Corporation 2011.  All Rights Reserved.

###

6 Critical Steps to Protect Your Commissions in a Challenging Market

The compensation of most commercial real estate brokers is performance based, especially in lease transactions.  When real estate brokers perform, they are entitled to receive their compensation. Yet, too many seasoned brokers put their compensation at risk, too often.

Follow these six simple, but critical steps to protect your commissions, and to ensure that you’ll be paid fairly, in-full, and on-time.

Step 1. Speak Up!

As early as possible, discuss your compensation requirements with both your tenant – client and any landlords with whom your client may consider entering into lease negotiations.  That means at your first meetings, before your prospective client actually becomes your client, and at your first landlord meetings, advise them how you expect to be compensated, how much, and why.  Advise them that your compensation is performance based…based on YOUR performance in bringing about an executed lease, not based on the tenant’s performance once the lease is signed.  That’s a critical aspect of a real estate professional’s compensation.  Once the transaction has been completed, so has the job of the real estate broker, and at that point his / her compensation has been earned and is due.  Real estate brokers are NOT in the tenant credit guarantee business and are not responsible for the performance of the tenant after the lease is executed.  Read more on this subject.

Explain to your tenants that at some point, while you are working to protect them, you may ask for them to demonstrate to the landlord that they expect you to be compensated adequately.

Step 2. Make It Clear in Your Representation Agreement

Never work to acquire real estate on a company’s behalf, without having a written agreement between them and your company.  Your agreement should define your obligations and those of your client.  It should specify how and by whom your company would be paid, and should state that your compensation is not dependent on your client’s performance under any lease. Moreover, in your agreement, your client should agree not to execute a lease until your company has secured an executed commission agreement from the landlord.

Step 3. Spell It Out in RFPs and Offers:

Include text in all requests-for-proposal and offers, specifying how much and by whom your company would be paid, that your compensation is due in-full upon execution of the lease, and that the tenant’s creditworthiness and/ or performance under the lease shall not impact how, how much, or when your compensation would be paid. The old standard text that often appears on offers saying “Commission to be paid by separate agreement” is no longer a viable means of protecting yourself.

Shouldn’t the landlord know in advance what your compensation expectations are, so he/she can properly budget for transaction costs?  Shouldn’t your tenant-client know how you’ll be paid?  Then, why not be transparent?

Include text in RFPs and offers clearly stating that you make no representations, claims, or warranties, as to the tenant’s creditworthiness, financial condition, or ability to perform any of its obligations, that the landlord will be solely responsible to conduct its own investigation of the tenant and satisfy itself as to the tenant’s financial condition, and that your compensation shall not be conditioned on the tenant’s creditworthiness, financial condition, or ability to perform any of its obligations.

Step 4. Be Clear in the Commission Agreement

Irrespective as to whether it is a common practice in any market for a landlord and tenant broker to enter into a commission agreement, always secure a written commission agreement before a lease is executed.

In almost an identical fashion, include text in the commission agreement, whereby the landlord acknowledges that you made no representations, claims, or warranties as to the tenant’s creditworthiness, financial condition, or ability to perform any of its obligations, that the landlord will be solely responsible to conduct its own investigation of the tenant, and that your compensation shall not be conditioned on the tenant’s creditworthiness, financial condition, or ability to perform any of its obligations.

By the way, since you’re asking the landlord to acknowledge that you made no claims, be certain not to make any!

Step 5. Use the Lease to Protect Your Compensation

The lease provides an excellent opportunity for you to be transparent with your tenant and bring the tenant in on the commission conversation.  Explain to your tenant that as you fight hard to secure favorable terms on its behalf, you will need the tenant’s help in securing favorable commission terms.  The tenant’s assistance becomes especially important since you will not ask the tenant to compensate you, but only to stand arm-in-arm with you as you negotiate both the lease terms necessary to protect the tenant and the commission terms needed to protect your company.

With tenant and broker in a unified front, this approach benefits both tenant and broker.  It clearly telegraphs to the landlord that both tenant and broker are aligned in all respects, are co-dependent, and that the landlord will not likely be able to divide and conquer, as some overly-aggressive landlords will seek to do.

Include text in the lease stating that if the landlord does not pay the broker its commission in-full and on-time, in accordance with the terms of the commission agreement, then the tenant may, at its option, pay the broker’s commission and deduct an equal amount from its rent without being in default.

Most tenants will have no issue with the addition of this type of text, as it places no burden on them, and the decision to pay you will be at their discretion.

Some landlords will yell and scream and claim their lenders will never approve of such text. Since such text places no greater burden on landlords than the terms contained in the commission agreement, and since it specifically references the terms of the commission agreement, lenders typically take no issue with such text.  If a landlord fights hard on this issue, be very careful and there may be real problems hiding around the next corner.

Step 6. Secure the Lender’s Cooperation

Landlords get lenders to grant non-disturbance agreements all the time, wherein lenders agree not to disturb tenants’ right to use and occupy their space in the event of a building’s bankruptcy or other similar circumstance.  Similarly, brokers should insist that landlords secure from their lenders written agreements stipulating that, in the event of a building’s bankruptcy or other action that might displace the landlord, the lender would fulfill the landlord’s commission obligations.

In tough times, unusual things can occur, and a business-as-usual approach can prove dangerous. This is especially true when it comes to broker compensation, which is sometimes treated as the last point to be negotiated or as a landlord’s slush fund, in some transactions.  Moreover, if during lease negotiations on your client’s behalf, a rogue landlord thinks he/she can get the best of you because you were not aggressive in securing your compensation requirements, that unfortunate perspective will likely translate into how the landlord will negotiate with you for your client’s lease. If you’re weak in protecting yourself, you’ll be perceived as being weak on your client’s behalf, and in fact, you may actually lose for your client, while you lose for yourself.

 

About Real Estate Strategies Corporation

Real Estate Strategies Corporation is a respected corporate advisory and transaction services firm that provides thought-leadership, decision-making, planning, project management, and transaction execution services to finance and senior executives at management team-led public, private, and portfolio companies, and not-for-profit organizations.  Under the leadership of its award-winning CEO, Andrew Zezas, RealStrat’s clients engage the firm when acquiring, disposing of, renegotiating, or enhancing occupied leased or owned real estate in New Jersey, Pennsylvania, New York, Connecticut, and throughout North America.  By creating and executing Business DRIVEN Real Estate Solutions and identifying hidden Opportunities, RealStrat drives greater operational and financial performance in support of its clients’ stakeholder objectives, M&A requirements, and exit strategies.

In the current economic environment, RealStrat’s efforts are focused on uncovering, capturing, and re-purposing hidden liquidity and minimizing risk in its clients’ leased and owned real estate.  The firm provides counsel as to competitive advantage strategies in preparation for the eventual economic recovery.  Visit www.RealStrat.com. Read about timely commercial real estate issues at RealStrat’s blog at www.CorporateAdvisor.wordpress.com.   Follow RealStrat at http://www.Twitter.com/RealStrat.

LINKS:

RealStrat News
Biographies
Articles
Properties
What Our Clients Say

Copyright Real Estate Strategies Corporation 2011.  All Rights Reserved.

###


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