 As tenant representatives we are often asked by our clients what the difference is between a Request for Proposal (RFP) and a Letter of Intent (LOI).
Reduce Misunderstandings The RFP and LOI are very similar in that both are merely a discussion of some of the business terms and conditions that a tenant and landlord will need to reach agreement on in advance of executing a commercial lease agreement. The terms and conditions may include but not be limited to:
Maximize Negotiating Leverage RFPs are submitted by tenant brokers on behalf of tenants and are often presented in the earlier stages of lease negotiations. LOIs tend to be submitted or exchanged by either tenants or landlords and their brokers closer to final lease negotiation. It is not uncommon for a tenant broker to submit an RFP to a landlord, and the listing broker to respond by presenting an LOI as their response. The most significant difference is that a Request for Proposal is a signal from the tenant to the landlord you are considering multiple alternatives and are asking them to put forth their best offer. Submitting RFPs and getting proposals from a select few number of buildings will give you an “apples-to-apples” comparison of alternatives and help you negotiate the most competitive terms and conditions possible with the landlord. There is no negotiation leverage without options and the ability to walk. Unlike the RFP, when a tenant initiates a Letter of Intent, it is a declaration that the tenant intends to enter into a lease with the landlord for their specific premises. Landlords know that nearly all tenants that initiate lease negotiations by submitting a Letter of Intent have vetted their short list and will end up leasing their space. As tenant representatives we represent commercial tenants only. Never landlords. We utilize RFPs to develop a Plan B in case we are unable to work out an agreement with the landlord. If you don’t put landlords on notice that you are considering other options by submitting a Request for Proposal, you’ve lost the ability to maximize your negotiating leverage.  If you are reading this, you are likely just starting the process of leasing commercial real estate.
Many people start the process by asking Siri, Alexa, or Google to get an overview of the market. There is nothing wrong with that. But the results are not comprehensive, include paid advertising listings, lack key information, and don't represent the true market conditions. You may decide to reach out to each broker from the search results with listings that roughly meet your criteria. If so, you'll find that interacting with multiple brokers to request asking rents, flyers and current floor plans for each of the alternatives can be time consuming. Avoid Conflict of Interest Maybe you know someone in real estate that can help you vet the alternatives and even pre-tour to confirm the fit before you start to tour. Everyone does. It may be your kid’s little league coach, college roommate, neighbor, relative or someone you sit next to on the commute train. Commercial real estate is a “relationship” business, so people tend to work with brokers they know. Makes sense. Until it doesn’t. More than 90% of commercial real estate firms represent both landlords and tenants. This creates a built-in conflict of interest that few tenants understand, and even fewer brokers discuss. No one would hire a lawyer who works for the other side. Yet, the equivalent happens every day when tenants work with commercial real estate brokers and firms that also represent landlords. So, ask your broker if they or anyone else in their office represents landlords. If so, you have a built-in conflict of interest. At CroninCRE we work exclusively as representatives of tenants without conflict of interest. Every opportunity in the market will be researched and presented to you. We are only focused on finding value and multiple alternatives, many of which aren't found by asking Siri, Alexa, or Google. Why sign a Tenant Representation Agreement? Once you select a tenant broker to start looking for commercial real estate, they will likely request that you sign a Tenant Representation Agreement. So, why sign it? A written agreement is the most appropriate and legally safe way to create an agency relationship. Even though tenant representatives like CroninCRE are typically paid by the landlord, they have a fiduciary duty to represent your needs in everything they do. The agreement establishes the fiduciary relationship in writing. Simply put, the Tenant Representation Agreement means there are no other brokers working with you for this transaction. Before a tenant broker begins the search process below, they want to be assured that they are going to be compensated for dedicating their time and attention to creating multiple alternatives for you.
You couldn’t stay in business if you worked for free all day. The Tenant Representation Agreement makes sure your tenant representative is compensated. Without an agreement you don’t really have someone on your side. If your broker isn’t asking you to sign a Tenant Representation Agreement, you may have a broker with a conflict of interest. “The code is more what you call guidelines than actual rules.” – Captain Barbosa explaining the Pirates Code  Like the Pirates code, asking rents are guidelines that landlords and their brokers give tenants as a customary starting point for rent negotiation. But don’t confuse asking rent guidelines with reality.
On March 17, 2020, San Francisco issued a stay-at-home order. According to CoStar, average office asking rents on that date in the San Francisco metro market were $64.55/RSF and total availability was near market equilibrium at 9.9%. Two years later, San Francisco has the highest sublease availability rate in the country. On St. Patrick’s Day 2022, market uncertainty caused by the pandemic had nearly doubled total availability to a staggering 18.3%. In the slow recovery from the pandemic San Francisco, with a large population of work-from-anywhere friendly companies, sits at the bottom of major metros nationwide in return-to-office rates. That, together with tenants moving to cheaper markets translates to lower demand for office space now, and potentially fewer office workers in the future. Yet, contrary to the market reality caused by the pandemic, landlords have held on tightly to pre-COVID asking rents. On March 17, 2022, asking rents in the San Francisco metro market were down only 2.7% from the stay-at-home order of 2020 to $62.82/RSF. The Market Reality For the first time in a decade, tenants have gained negotiating leverage created by two years of pandemic. As tenant representatives we work exclusively with tenants. Never landlords. We recently negotiated a $32.00/RSF direct lease for Class B office space in San Francisco that had a 2020 starting rent of $56.00/RSF. Now, a 42.9% drop in negotiated rent from pre-pandemic may be an outlier but unlike some San Francisco asking rents, it’s to be believed. Why are Asking Rents out of sync with Market Reality? One of the dirty little secrets of the commercial real estate industry is that most big national brokerages represent both landlords and tenants. It is in the best interest of the brokers representing landlords to keep perceived rental rates as high as possible. Like the Pirates code, these asking rents are guidelines that aren’t to be trusted. Brokers that specialize in tenant representation are only focused on finding value and multiple alternatives for their clients. Properties with unrealistic asking rents tend to come in with higher rent proposals than equal and comparable buildings. Fortunately, some San Francisco landlords are starting to break ranks with their peers and are setting more realistic asking rents. If you find a landlord looking to gouge you on rent before a lease is negotiated, consider yourself lucky to have identified the bad news early. Then, move on to a more realistic alternative.  One of the first steps in planning for office space is to determine how much space you need. These “rules of thumb” can help estimate the amount of usable square feet required for your business based upon uses.
So far, the math is simple. Determine the number and size of offices, conference rooms, etc... plus an estimate of space needed for circulation (hallways/corridors) inside your suite and you can roughly estimate your usable space requirement. Now that you’ve developed an estimate of the amount of space you’ll need, it should be straight forward to identify the space alternatives that meet your size and budget requirements. But it’s not. Because, while tenants understand and think in terms of their usable space needs and budget limitations, commercial office space is typically marketed as rentable square feet.
Office tenants understand that you can’t determine rent without the rental rate and square footage. What they often don't understand is that load factor is the variable in the rent equation used to calculate the rentable square footage.
The load factor is applied to the tenant’s usable square footage to convert it to rentable square footage. Understanding how square footage is calculated is essential to determining the best size fit and value for your office space. For example, two alternatives with the same rentable square footage may appear equal but they aren’t.
From a tenant’s perspective, with the differences in load factor (20% vs 10%) you gain 757 usable square feet (9,090 USF - 8,333 USF) in Option 2 versus Option 1. For this reason, it’s important to understand how square footage calculated on your commercial office lease.  Office tenants always understand that you can’t determine rent without the asking rent and rentable square footage (RSF). What they often don't understand is that load factor is just as important to the calculation of their rent.
If you require a set certain amount of office square footage, understand that not all office spaces with the same advertised rentable square footage and the same asking rent are the same. Usable Square Feet (USF) One of the first steps in planning for office space is to determine how much usable space you need. These “rules of thumb” can help estimate the amount of usable square feet required for your business based upon uses. So far, the math is pretty simple. Determine the number and size of offices, conference rooms, etc... plus an estimate of space needed for circulation (hallways/corridors) and you can roughly estimate your usable space requirement. Simply put, usable square footage is the actual and exclusive space you occupy inside your suite where you conduct your business. Usable square footage does not include common areas of a building such as lobbies, shared restrooms, stairwells, storage rooms, and shared hallways. Now that you’ve developed an estimate of the amount of space you’ll need, it should be pretty straight forward to identify the space alternatives that meet your size and budget requirements. But it’s not. Because, while tenants understand and think in terms of their usable space needs and budget limitations, available office space is typically marketed as rentable square feet. Rentable Square Feet (RSF) Your rent will be based on rentable square feet so understanding the difference between usable square feet and rentable square feet is essential to evaluating alternatives. Rentable square footage is your usable (actual and exclusive) square footage PLUS a portion of the building’s shared or common space (lobbies, shared restrooms, stairwells, storage rooms, and shared hallways, etc..). Each tenant pays for these common areas in proportion to the amount of space they lease in the building. Since no two buildings have identical amounts of common area, you will rarely if ever find that two spaces listed with the exact same rentable square footage are equal in usable space. This is where the math stops being simple. Load Factor (LF) The variable in your rent equation that accounts for these common areas is called the load factor. Load factors are typically represented as a percentage and commonly range between 10% and 20%. The formula to calculate your rent looks like this:
While you’d think that such an essential variable in the rent equation would be included in marketing collateral and industry databases, load factor is often not. In fact, it’s not uncommon for listing brokers to be uncertain or unaware of the building LF when showing space. Two things listing brokers like to withhold in tight markets, the asking rent and load factor. (More on Asking Rent: WITHHELD). For example, two alternatives are marketed with the same size (10,000RSF) and asking rent ($60.00/RSF/YR) may appear equal but they aren’t. When you include the differences in load factor (20% vs 10%) you gain 757USF (9,090USF - 8,333USF) in option 2 for the same rent as option 1.
So, while the two alternatives are marketed as the same size (10,000RSF) and asking rent ($60/RSF/YR), alternative 2 is a better value at $66.01/USF/YR based on a lower load factor. That is why load factor matters.  As tenant representatives, we advise our clients that ownership matters. The differentiator between two similar buildings and spaces with like amenities and rent can often come down to the quality of ownership. Buildings that have been owned and managed by the same entities for a long period of time tend to be better managed.
 A What does the sale of the Transamerica Pyramid mean for Tenants? A New York investment firm and its partners closed a deal to buy San Francisco’s iconic Transamerica Pyramid for $650 million, marking the first time the building has changed hands since it was delivered in 1972. Most California office tenants know that commercial landlords typically pass on a pro rata share of real estate taxes, including property taxes, to their tenants. In the most common office lease, tenants are only responsible for property tax increases over the “base year” amount which is most often the year of the commencement date or the year following the commencement date. Proposition 13 was approved by 65% of California voters in 1978 and currently limits property tax reassessments (increases) to 2% annually but allows for full tax reassessments if the building is sold, more than 50% is transferred, or substantial new construction is completed. Property tax reassessments can have a devastating effect on California office tenants. Property Tax Liability As tenant representatives, we advise our clients that ownership matters. The differentiator between two similar buildings and spaces with like amenities and rent can often come down to the quality of ownership. In general, buildings like the Transamerica Pyramid that have been owned and managed by the same entities for a long period of time tend to be better managed. However, these same buildings may not have been reassessed under Proposition 13 for years and in the case of the Transamerica Pyramid, since it was built in 1972. As a result, tenants in buildings like the Transamerica Pyramid carry a potentially large tax liability when the property is sold or transferred during the term of their lease. What is the property tax liability for Tenants of a building like the Transamerica Pyramid? Let’s keep the math simple for this example with a 1.15% property tax rate and assume that you entered into a 5-year lease for 10,000 square feet in a building like the Transamerica Pyramid with ~500,000 square foot. You have a 2% pro rata share with a 2018 commencement date. The building hasn’t been sold since 1972 and had a Proposition 13 assessed value of $250,000,000 in 2018 (your lease “base year”) and property taxes for the building were $2,875,000. When the assessed value of the property was increased by the Proposition 13 maximum of 2.0% in 2019, the building’s subsequent year’s taxes were $2,932,500. You paid your 2% share of the $57,500 increase, or $1,150. However, in October 2020 the building sold for the first time since 1972 for $650,000,000. Under Proposition 13, the property will be reassessed and taxed on the new value, and the property taxes will be increased to $7,475,000. The increase in property taxes from your base year 2018 to 2020 will be $4,600,000 and since your firm occupies 2% of the building, you’ll get handed a bill for $92,000 ($9.20/SF). And, you’ll pay that bill and more every year until your term runs out. Why is Proposition 13 protection a third rail issue for brokers? How many CEOs would knowingly take on a contractual obligation without the ability to control, or plan for cost increases? This is why California office tenants should pursue Proposition 13 protection in their lease negotiations. Unfortunately, the example above is the rule rather than the exception for several reasons. The largest tenants in softer markets are more likely to gain Proposition 13 protection. In tighter markets and for smaller tenants where the landlord has the leverage, it is very difficult to negotiate for Proposition 13 protection. Not having Proposition 13 protection can be devastating for tenants but building owners are extremely resistant to agreeing to this protection. Simply put, commercial property is harder to sell if its tenants have Proposition 13 protection. So, it’s understandable that landlords are somewhat inflexible and seek to pass the tax reassessment burden onto tenants. Somewhat harder to explain and understand is why Proposition 13 protection is a third rail issue for brokers. The dirty little secret in office leasing is that more than 90% of the commercial real estate brokerages represent BOTH tenants and landlords. This creates a built-in conflict of interest that few tenants understand and even fewer brokers discuss. No one would hire a lawyer who works for the other side. Yet, the equivalent happens every day when tenants work with commercial real estate brokers and firms that also represent landlords. So, if your broker or anyone else in their office represents landlords, you have a built-in conflict of interest. If your broker isn’t asking for Proposition 13 protection, it’s probably because like a third rail, touching it is extremely dangerous for their business. That is why many California brokers don’t pursue Proposition 13 protection for their clients. Seeking and obtaining Proposition 13 protection is easier said than done but it should always be subject of negotiation. If full Proposition 13 protection against reassessment is not possible, a more typical compromise is seeking some level of protection, for example a cap on Operating Expense (OPEX) increases throughout the term of the lease. At a minimum, it’s important to do the math on your potential Proposition 13 reassessment liability before entering a lease in any building in California. Tenants need to know when the property was last reassessed for Proposition 13 purposes, what its assessed value was and what its assessed value is today in order to forecast the potential liability due to a transfer of ownership . The longer it’s been since the last reassessment, the greater your exposure to property tax increases.  California is in the midst of an unprecedented economic crisis, and yet another threat is on the horizon. The 2020 California Proposition 15 would change the way commercial property is taxed and have a devastating effect on small- and medium-sized business that make up half of California office tenants.
Proposition 13 was approved by 65% of California voters in 1978 and currently limits property tax reassessments (increases) to 2% annually but allows for full tax reassessments if the building is sold, more than 50% is transferred, or substantial new construction is completed. Significantly, 2020 California Proposition 15 (aka “split roll”) would remove the 2% reassessment limit and require commercial and industrial properties to be taxed based on their market value beginning in fiscal year 2022-2023. In California, commercial landlords in multi-tenant buildings typically pass on a pro-rata share of building operating expense (OPEX) including property taxes, to their office tenants. In the most common office lease, tenants are only responsible for OPEX increases over the “base year” amount which is most often the year of the commencement date or the year following the commencement date. Property Tax Liability As tenant representatives, we advise our clients that ownership matters. The differentiator between two similar buildings and spaces with like amenities and rent can often come down to the quality of ownership. Buildings that have been owned and managed by the same entities for a long period of time tend to be better managed. Under Proposition 13, buildings like these may not have been reassessed at market value for years and in some cases decades. As a result, their tenants carry a large tax liability if the property is sold or transferred during the term of their lease. Or, if Proposition 15 passes. How much will tenants absorb when Proposition 15 tax increase is passed through to them? Let’s keep the math simple for this hypothetical example and use a 1.15% property tax rate and assume that you entered into a 7-year lease for 10,000 rentable square feet (RSF) in a San Francisco building with ~500,000 RSF. You would have a 2% pro-rata share with a 2019 commencement date and base year. In this example, the building hasn’t been sold since 1998 and has a Proposition 13 assessment value of $75,000,000 in your 2019 base year with property taxes of $862,500. When the assessment value of the property is increased by the Proposition 13 maximum of 2.0% in 2020, the subsequent year’s taxes will be $879,750. You will have to pay your 2% share of the $17,250 increase over base year, or $345. In 2021, taxes will be $897,345 and your 2% share of the $34,850 increase would be $697. All very manageable. However, in 2022 under Proposition 15 the 2% limit on property tax reassessments is removed and property will be reassessed and taxed on the market value of $400,000,000 (estimated $850/SF sale price) with property taxes increasing to $4,600,000. The increase in property taxes from your base year 2019 to 2022 would be $3,737,500 and since your company occupies 2% of the building, you’ll get handed a bill for $74,750. And, on top of your base rent you’ll pay that bill and more every year until your term runs out. How many CEOs would knowingly take on a contractual obligation without the ability to control, or plan for cost increases? Whether Proposition 15 passes or not, California office tenants still carry a large tax liability if the property is sold or transferred during the term of their lease. Just as we advise our clients that ownership matters, so too does a building’s property tax liability. In addition to ownership, the differentiator between two similar buildings and spaces with like amenities and rent may come down to size of a tenant’s property tax liability. For this reason, we pursue some level of protection for our office tenants by seeking a limit on Operating Expense increases throughout the term of the lease. For the last decade only the largest tenants in softer markets have been able to negotiate caps on OPEX increases. But a black swan event like the coronavirus pandemic shifted leverage in markets that once favored landlords to favoring tenants overnight. Seeking and obtaining OPEX protection is easier said than done but it should always be subject of negotiation. At a minimum, it’s important to do the math on your reassessment liability before entering a lease in any building in California. Tenants need to know when the property was last reassessed for Proposition 13 purposes, what its assessed value was, and what its assessed value is today in order to forecast the potential liability due to a transfer of ownership or passage of Proposition 15. The longer it’s been since the last reassessment, the greater your exposure to property tax increases. Every business in the world is developing plans for coping with the sudden economic uncertainty caused by the coronavirus pandemic. After staffing cost, real estate is the largest expense for most businesses. Today, every company is looking at ways for reducing that cost.
But people play a critical role in a company’s success and a black swan event like the coronavirus pandemic is a catalyst for employees to reconsider where they choose to live, work, and settle. Even before the coronavirus pandemic, for both employers and employees, the Bay Area's escalating housing costs, deteriorating quality of life, growing traffic congestion and higher taxes spurred many to move or relocate operations outside of California. Together with our alliance partners, CroninCRE serves the commercial real estate needs of clients from Northern California through Portland to the Puget Sound so we deal with this issue frequently. Driven by a need to both reduce costs as well as attract and retain a productive pool of talent, companies like Google, Apple, Square, New Relic and many smaller tech companies and startups are joining a growing number of businesses that are moving or expanding to the Pacific Northwest. Office Rent AND Cost of Living Matters Average office rents in San Francisco ($70.06/RSF/YR) are more than double rents in Portland ($27.62/RSF/YR) and almost twice Seattle rents ($47.48/RSF/YR). (Source: Costar) Reducing office rent impacts the length of a start-up company’s financial runway and is a major factor when new businesses consider where to start. For established companies looking to expand or contract, rent cost and/or rent reduction along with taxes and incentives are major factors for consideration. But apartment rent and cost of living matters too. Limited availability and increasing demand have driven up the average one- and two-bedroom apartment rents in San Francisco ($2,469/$3102) while significantly more affordable options are found in Portland ($1,124/$1,326) and Seattle ($1,357/$1,690). (Source: apartmentlist.com) Home prices offer even greater value in the Pacific Northwest than the Bay Area. The medium sale price of a single-family home in San Francisco is $1,370,900 compared to Seattle $716,900 and Portland $436,100 (Source: Zillow.com). If talent and money are your company’s fuel for growth, consider the impact of office rent, cost of living and quality of life on your ability to attract and retain talent before you select a location to start or expand your business.  The commercial real estate market was flying until it suddenly wasn’t. After more than a decade of growth we knew the day would come when the office market would weaken. What none of us saw coming was a black swan event like the coronavirus pandemic where a market that once favored landlords shifted to favoring tenants in just days.
Every business in the world is developing plans for coping with the sudden economic uncertainty. With no lead time companies have been forced into experimenting with employees working from home. Unfortunately for some companies and their employees the coronavirus outbreak has already led to layoffs and furloughs. After staffing cost, real estate is the largest expense for most businesses. At some point soon every company is going to look at their office lease obligation and ways for reducing that cost. The first step is to do your homework. Study your lease to understand what rights you may have to make lease changes. Audit your lease and operating expense history to evaluate if you have been overpaying. Consider bringing in a planner to right-size your space if operationally it no longer fits. Then, together with your tenant representative, work with your landlord. Share with your landlord that you are seeking rent relief and are considering several options to mitigate your lease obligation. Sublease If you need to downsize your current space, and provided your lease allows for it, listing your space on the sublease market is one way to reduce your rent cost. Companies that have suddenly found themselves with excess space are already listing their space for sublease and dropping sublease rates 20% to 30% to get their space filled quickly. Landlords want to avoid competing with multiple below market sublease listings for empty space in their buildings because a sudden flood of sublease inventory deflates the building’s overall rental rate. The possibility of another sublease in the building could also make your landlord more willing to work with you on restructuring your lease. Restructuring One of the tightly kept secrets in commercial real estate is that your lease obligation is negotiable. There are two variables in your rent cost calculation. Rate and rentable square footage (RSF). Both are negotiable by either a rate reduction or contraction (giveback). Most dual agency brokers will deny it but brokers that only represent tenants know when negotiating leverage shifts from landlords to tenants, landlords suddenly become more willing to consider restructuring lease obligations. Why? Because in uncertain economic times landlords know that no one will be standing in line to pay your current rental rate for the entirety of your empty office space. Even before the coronavirus pandemic hit the Bay Area sublease availability was on the rise and rent growth was slipping. When the commercial real estate market was flying it would be rare to find a landlord willing to consider restructuring your lease. That’s no longer the case. Termination You may not have looked at your lease agreement since the day it was executed but now is the time to see if you negotiated a termination right. Depending on the termination right you may have the ability to terminate the lease contract before the expiration of the lease term. Be aware that the landlord may maintain the right to sue for damages for early termination or charge a fee for early termination. So, given the shift in leverage from landlords to tenants, why isn’t your broker enthusiastic about assisting you in seeking rent relief? More than 90% of the commercial real estate brokers are dual agents, representing both landlords and tenants. This creates a built-in conflict of interest that few tenants understand and even fewer brokers discuss. No one would hire a lawyer who works for the other side. Yet, the equivalent happens every day when tenants work with commercial real estate brokers and firms that also represent landlords. It is in the best interest of brokers that represent landlords to keep perceived asking rates as high as possible and vacancy rates as low as possible. But, large amounts of below market sublease space softens the market. Otherwise, landlords and listing brokers would openly publish asking and actual rents on every direct and sublease space they list. In order to gain leverage and rent relief you need to first eliminate conflict of interest by woking with a broker that only represents tenants. If your broker or anyone in their office has listings in the market, they have a conflict of interest. Then, work together with your landlord and tenant representative to explore all options for mitigating your lease obligation – sublease, restructuring, and termination. |
Archives
August 2022
Categories
All
|
RSS Feed
© 2022 CRONINCRE INC. ALL RIGHTS RESERVED