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Negotiating Leases Heats Up as Commercial Lending Cools

REAL ESTATE: Tenants Should Know How to Protect Themselves in the Event a Landlord Defaults

By MARTY GRAHAM

While the commercial real estate world has cooled off so fast that it’s on the verge of a trillion-dollar implosion, instability is the only certainty. Trillions of dollars of commercial building debt is going to come due in the next few years, and not every property owner is going to be able to hang on.

That leaves savvy tenants watching their leases and asking themselves: Am I paying too much for space? Is my building going to be OK? Is my business going to get thrown out if my landlord goes into foreclosure? What if I have problems?

Those are important questions, say commercial brokers and lawyers who represent tenants. A tenant’s best investment may be doing some homework and keeping a good relationship with the landlord — and the lender.

“The most important thing a tenant can have is a Suborning Non Disturbance Agreement (known as an SNDA) between the tenant, landlord and the lender because the lender has to honor the lease,” said Scot Ginsburg, executive vice president at the Chicago-based real estate services firm, Jones Lang LaSalle. “Otherwise, the lender doesn’t have to honor the lease.”

The agreement is part of the leasing process — a recent development, according to tenants’ agents.

“Lenders are an absolute pain in the neck to get an SNDA from and it drags the process out, but you don’t sign until you have it,” adds Ginsburg, who exclusively represents tenants.

While that SNDA is a critical part of the new tenant’s lease, people and businesses that signed leases before 2006 often didn’t get them and didn’t need them.

“If the current loan was made after the tenant signed the lease, the tenant is in a better position because the loan was underwritten with the assumption that the tenant was there,” says Doug Ceresia, vice president of NAI San Diego, a commercial real estate firm where he represents both tenants and landlords. “But it will always come down to negotiation.”

Realistically, if the landlord defaults, it’s not likely that the tenant will be evicted, the agents agree.

“In a commercial building that’s 50 to 75 percent leased, nobody can sell without taking a beating,” Ginsburg said. “If the lender has tenants, they’ll most likely try to keep them both for the income stream and for the value to the building if they go to sell down the road.”

Deposit, Maintenance Issues

Being able to stay after the landlord defaults isn’t necessarily the end of worries, according to Brown Law Group attorney Karina Juarez. Loose ends remain.

» Link to this article


  February 8-14, 2010
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