The CRE termination clause and why it may not work

Business Manager, Stuart Commercial Inc., Sales Associate, ICR Commercial Real Estate
  • Sep. 30, 2015

Kelly MacsymicThere are many terms and clauses in commercial real estate leases and sifting through all the legalese can be quite daunting. Various responsibilities and rights exist for the benefit of both tenant and landlord.

One term that rarely makes it into the lease, but may be asked for at the offer stage, is the termination clause. Landlords typically shy away from it. Let me tell you why.

Guessing game

Many tenants will request a termination clause if they’re uncertain of their future expanding or contracting needs. If a business is rapidly growing, for example, tenants have a difficult time estimating what they’ll need in a few years. They don’t want to lock into a space they may outgrow quickly.

I worked with a client who was contracting space and faced a similar issue in the other direction. The workforce was phasing out use of traditional office space and more employees were working from home.

The tenant recognized it had a need for space, but how far that would narrow in a matter of years was hard to foresee.

The tenant ultimately decided to take a shorter term with a minimal amount of investment of improvement in the space. It understood the need to sacrifice some of the comfort it would have normally invested in a space because it may not be there long enough to justify the cost.

Long term shrinks before your eyes

For tenants, the solution to size uncertainty is requesting the ability to opt out. To them, it solves the uncertainty issue and allows them to present a longer-term offer.

Landlords, and their bankers more specifically, see this from another angle.

The long-term lease a tenant feels it’s offering diminishes in its appeal when the landlord realizes the tenant can walk with a few months notice. The deal has effectively become a three- to six-month term, or whatever the stated notice period.

I mention bankers because they’re involved in determining asset value for the landlord. They most certainly look at the covenant of the tenancies and the value they bring to the property.

An attractive lease rate is important, but term is almost as valuable. They can’t fairly assess the risk of lending on a property without terms from tenancies. A tenancy with an out clause holds little value for them.

Re-adjust the plan

I recommended a solution this week that gave both the tenant and landlord a fair alternative. We adjusted the term to a shorter span and tied future lease rates into a couple of options to renew.

The tenancy was provided the ability to leave, but the landlord also negotiated his terms down the road.

If the tenant stays, the landlord has already determined a satisfactory return. If the tenant leaves, the landlord has a minimum acceptable term. This solution buys both parties room to plan with some of the negotiation out of the way.

As with all our blog posts, I want to add there are always special-case scenarios where you can pitch everything I’ve just stated. No two deals are alike.

There definitely exists a time and place for termination clauses in commercial leasing. That’s why we have them in the first place.

But it’s important to know that sometimes as real estate professionals we’re able to offer other options when the termination clause doesn’t work.

I am a gal of all trades and wear a few hats at my current job though nothing quite as esteemed as my 1996 Unity Western Days Rodeo Queen crowned…

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I am a gal of all trades and wear a few hats at my current job though nothing quite as esteemed as my 1996 Unity Western Days Rodeo Queen crowned…

Read more

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