Commercial Lease Assignment Problems

As part of selling your business, the lease can be one of the most overlooked barriers to completing the deal.  The buyer and seller may have a “meeting of the minds” when it comes to the lease, but if it isn’t assigned they have nothing to buy or sell.  

Let’s explore a few of the common issues that come up related to a lease in the sale of a small business.

Inadequate Time Remaining on the Lease

Ideally a tenant should sell a small business with more than three years left on the lease.  The takeaway here is the longer the better.

It’s not uncommon for me to meet a seller who is going “month-to-month” on a lease and proud of it.  In their mind they’ve reduced their commitment to the business, but in the buyer’s mind one of the largest expenses of the business is unsecured and at risk of inflation.  The buyer’s ideal scenario is a monthly rent price that is known and set into infinity, and for this reason many buyers ask if there is an option to buy the real estate.

When sellers go month to month, the lease negotiation with the landlord is shifted further towards the advantage of the landlord/property management firm.

Landlord Approval is often a Condition to Close in Asset Purchase Agreements

When a business is sold the buyer must be approved by the landlord to be granted an assignment or a new lease.  The seller normally only cares if the buyer has the funds to pay for the business, but the landlord doesn’t want the buyer “squeaking in” with nothing left in the bank account, or even worse bringing debt into business.

Landlords want to see reserves for a buyer to be able to pay the rent for up to six months, and they will ask for a “PFS” or personal financial statement to judge the rent worthiness of a tenant.  Much like an SBA loan, they may also want to see some experience from the tenant that’s relevant to the business they are buying.

While the landlord can’t tell an owner how to run a business if they pay the rent and follow the rules of the lease, they can make it difficult to get in.

Assignment Fees From a Landlord may be Excessive

It’s not uncommon for a landlord or property management group to ask to see the contract for the sale of the business before considering a new tenant.  They do this because they want to know how much the seller will make when they sell the business, and they may want a piece of the action. This is called an assignment fee.  

For the right to transfer a lease, or what is often justified as “attorney’s fees,” an assignment fee is demanded to release the current tenant from their obligations.  The fee is normally between $2K-$5K, but in one case I’ve seen a landlord ask for 10% of the contract price, which was $33,000. Assignment fees are negotiable, and a good broker and/or business attorney can assist a seller in negotiating this amount.  

It also highlights the value of having a good relationship with the landlord.

Security Deposits on Commercial Lease Assignment may be Necessary

While the assignment is typically the responsibility of the seller, the landlord can and will also ask for a security deposit from the buyer.  A reasonable security deposit is one month’s rent, but this too is subject to negotiation. I’ve seen up to six months requested, and again it’s highly negotiable.  Both the term and how long it’s held can be negotiated.

While the seller of the business may think this isn’t his or her problem, it can be a problem if the security deposit makes the acquisition prohibitive for the buyer.

Landlords may ask for longer term security deposits as a deterrent to acquiring the space if they’re not trusting of buyers.  Having a strong personal financial statement and experience to run the business is the best defense against an unreasonable security deposit.

Assignment Conditions may Surprise Everyone

Just when you think it couldn’t get any worse, there’s more.  Landlord’s often don’t like letting the original tenant off the hook. If a seller gets his or her lease assigned, the landlord will most likely insist that the seller stays on the lease as back up in case the buyer doesn’t pay the rent.  

Why have one “throat to choke” when you can have two?

The best defense here for a seller is to negotiate the removal of a personal guarantee when renewing a lease years before selling the business. If the business is strong and long lived, and the landlord likes you, renewing for a long term but removing your personal obligations will best position you to exit your business without the associated liabilities attached.

Conclusions

Some things like the “month to month” phenomenon of sellers are counter-intuitive.  A final example are below market rents. While below market rents can be great for a seller for cash flow, it’s all the more reason to expect a landlord to “correct” the rent when a new tenant arrives.  Market rates are what you want to be paying to avoid any unpleasant surprises when it’s time to sell the business.

When it comes to leases, the landlord has most of the cards.  Even when neighboring spaces are unrented, landlords see a small business sale as their opportunity to make some money and adjust market prices to current levels.  

Here again we see the difference in the renter versus owner perspective; the renter thinks “they need my business because these other units are unrented, so I’m going to get a great price” while the landlord thinks “this tenant needs to pay market rate or higher because these other units are unrented.”