How to Negotiate a Better Lease

With commercial real estate prices on the rise, pool and spa retailers must protect their profits by negotiating favorable terms at lease renewal time. A proactive approach can keep landlords from getting the upper hand. Dealers must get an early start, research their local markets for current pricing and create fallback positions that provide negotiating leverage.

It's time for your lease renewal. Are you ready to negotiate?

If you're like many retailers your answer is no. But a lack of preparation can be costly. Rent is typically a retailer's second largest operating expense after labor. And the common industry practice of adjusting staff levels to reflect a changing business environment simply won't work with lease payments: You're pretty much stuck with them once you've signed on the bottom line.

With commercial property owners looking to boost rents, it's more important than ever to negotiate a better deal. The higher the rent, after all, the greater the damage to profits — every month.

"The market for retail space has changed significantly in recent years," says William D. Himmelstein, CEO of Chicago-based Tenant Advisory Group, a real estate tenant brokerage firm. "Across the country there is less space available. Landlords are keenly aware of that, so rental rates are on the increase."

What's behind the tightening of available space? The post-2008 economic rebound has a lot to do with it. But so does the growing availability of business loans. "When lending loosens up more people are able to start businesses," says Himmelstein. "When that happens they need space. And we are starting to see a more business friendly environment with more borrowing opportunities." At the same time, he adds, some of the national retail chains are back in expansion mode. So things are coming together to put pressure on the best locations.

Start Early

When should you start planning your own strategy for landing a better deal? Early, according to the experts. "Time is your friend in real estate," says Himmelstein. "The earlier you can start thinking about renewal the more advantage you will have over the landlord. Relocating a retail store takes a lot of time, so if you delay until three or four months before lease expiration, the landlord will have the upper hand."

Start too early, on the other hand, and you may find yourself locked into your current spot when a better location becomes available. So what's a good compromise? "The short answer is one year in advance of the lease expiration," says Dale Willerton, a Los Angeles-based tenant lease consultant and author of "Negotiating Commercial Leases and Renewals for Dummies." "But there is a caveat: If you have a renewal option clause, you want to be sure to start at least six months before that." The option might not be your best choice (as we will see below) but you still want it as a backup. "The renewal option clause is your fail safe, your insurance."

Before you do anything else, double-check your lease's expiration date. Get that wrong and your chances of a successful negotiation plunge. And it's easy to make a mistake when the passage of time impairs memory. "The day you opened your store is not necessarily the day your lease expires," cautions Willerton.

Improve Terms

If your lease is like most others, it calls for a five-year term and one or more five-year renewal options. But the renewal option, while designed to offer some protection to the retailer, is not necessarily your best choice. "One of biggest myths is that the only way to renew your lease is to exercise your renewal option clause," Willerton says. That's not the case, and in fact if you do so you suffer a significant downside: Everything but the rent amount will be off the negotiating table. That's a lousy negotiating position to be in.

No wonder, then, that in 98 percent of the lease renewals negotiated by Willerton, the renewal option is not exercised. "Bear in mind that most of the time the landlord wants you to stay. That gives you some negotiating leverage. You lose that, though, if you exercise your renewal option." We'll get to what can be negotiated later in this article.

Create "Plan B"

Once you have determined your lease renewal date, put yourself in a better negotiating position by locating alternative store locations you can move to if your landlord's terms are not to your liking.

"The most common mistake is to only negotiate with the existing landlord on the current location," Willerton says. "Doing so fails to give the landlord a reason to give you a good deal." The problem worsens if you tip your hand by letting the landlord know you are not shopping around. "Suppose your landlord asks, 'Are you looking at other properties?' You might respond, 'Oh we don't want to move — we are not talking with any other landlords.' Right there your landlord has you."

It's far better to line up some alternative locations where you can relocate if your landlord becomes unreasonable. "You need to create some competition for the landlord," Willerton says. "Ask yourself: Where would I go if I have to move? Do I have relocation options if this landlord wants to play hardball and double my rent?"

Having alternative locations in your pocket will give you the freedom to reject onerous terms. "Tenants only get the best deal when they are walking away from the negotiating table — not when they are at it," Willerton says. "Remember that landlords always hold something back that they will give up only if it's clear the retailer might move."

Indeed, having the landlord chase you as you are walking away from a deal is the best position to be in. "The tenant is the landlord's customer, and the customer deserves to be pursued," Willerton says. "That is the mindset too many tenants do not understand."

Talk It Up

What's the going rate for retail space in your town? Maybe it has changed since you last went shopping. You want to find out early in the negotiating process. "Do your due diligence," advises Sharon Kahan, first vice president at the Chicago office of CBRE, a Los Angeles-based commercial real estate company. "Investigate your local market and find out what other retailers are paying in your area."

That means talking not only with real estate agents but also other retailers — especially those with property from the same landlord. They can tell you a lot more than just what they are paying. "Some of your fellow tenants will have recently gone through the renewal process," Willerton says. "They can give you some valuable insights into how your landlord negotiates."

And more: Your neighboring retailers can alert you to relocation plans of their own. That can be a major factor when it comes to the desirability of your current location. "If you assume everyone else will be there after you renew, you might be wrong," Willerton says. "You can lose four neighbors and get four new ones in a five year cycle. Knowing someone is moving can make a difference in terms of your decision to stay or move."

You may also find out some surprising things. Maybe the landlord is planning to reconfigure the space surrounding your store, or maybe an adjacent tenant with more bucks wants to expand — in your direction. "You want to find out such things in advance," Willerton says.

You Go First

Successful retailers take the initiative when it comes to lease renewal negotiations. "Most tenants think the landlord is going to come to them and remind them in a timely manner that their lease is expiring," says Willerton. "But most landlords will not do that. That's because they want the clock to tick right down to where they have you over a barrel." Suppose only four weeks remain before expiration, posits Willerton. What can you do if the renewal terms are onerous? There's no time to move or negotiate. "Be proactive. Don't lose your time advantage."

Speaking up early is great, but don't tip your hand. "Too many times tenants say the wrong thing," Willerton says. "Suppose you see the property manager in the parking lot, and you casually say, 'By the way, our lease will be expiring and we want to do some major renovations and look forward to five more years.' You have just given the property manager a 'buy signal.' You have said you intend to stay. So why would the landlord do anything but try to raise your rent?"

And on that topic of renovations: Avoid doing them too close to renewal time. "If you do a $100,000 renovation a year before your lease is up, you have just given a 'buy signal' that puts you in a bad negotiating position," Willerton says. "Time your renovations to be concurrent with, or just after, renewal time."

Terms and Increases

While five years is the norm for retail renewals, consider negotiating a longer term — say 10 years — if that's more to your liking. One benefit is that banks will only lend money for the length of your lease, and you may prefer a longer term loan. You may be able to swing more years if you have been a good tenant, because long term leases benefit landlords, too. "Long term leases are particularly valuable for landlords because they help improve the value of a commercial property," Kahan says. Conversely, you can negotiate a shorter term lease if that's better for your business plan.

And how about the rent increase percentage? Anything you can do about that? "Most leases call for an increase of three percent per annum," Willerton says. It's important to negotiate for lower increases if you possibly can. "The big problem is that three percent compounded over 10 years is more like a 50 percent increase, not 30 percent." And that can be onerous. "There is a limit to how much retailers can raise prices — and it is generally not three percent per year. So the landlord is asking for something that the tenant cannot keep up with."

You may be able to get a lower increase, Willerton says. "Some landlords are more open to lesser increases, saying that they just want to match inflation, which is seldom over three percent."

You should also try to negotiate terms that go beyond pricing. Remember: Any inducement that can be negotiated on a new lease can be negotiated on a renewal. Maybe you can get some site improvements such as better lighting, a new paint job, or more attractive signage. And how about some free rent, or a refund of your security deposit? Or some "tenant allowance"—money from the landlord to help build out your space? Or how about eliminating the personal guaranty? How about removing some clauses that you found unpalatable? Renewal time is the right time to put these and similar items in play.

Get Help

As the comments in this article suggest, negotiating a favorable lease renewal is far more complicated than just signing off on a renewal option. It will often pay to have some outside assistance. Consider using a tenant broker. Bear in mind that they cost nothing to use because their payment comes in the form of commission splits with landlord brokers. At the very least, they can get you a fair price. "A qualified commercial broker can reference comps and help you figure out what you should be paying," Kahan says.

You might also want to consider the services of an attorney, who can be beneficial in other ways. "Brokers are there to minimize costs," Himmelstein says. "Attorneys are there to minimize risk." The broker will make sure your lease terms are competitive with those of other leases in your vicinity; the attorney will rewrite clauses that might put you at risk. Together with your own investigations of the local marketplace, these professional services can help you turn lease renewal time from a costly exigency into an opportunity to bolster your bottom line.

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