The Tenant wants flexibility, control, and freedom to sublease, assign, or change its use.
The Landlord wants a stream of rental income, extra cash payments whenever the Tenant exercises its rights under the Lease during good times; and effective remedies during down times.
The Landlord and Tenant need to reach middle ground.
How do you get there? with
Industrial Asset Management Council Lease Handbook
By Robert F. Duncan, Jr., J.D. and Philip E. Hammel, Ph.D
This handbook is a joint publication of ALI-ABA and the Industrial Asset Management Council (IAMC).
Industrial leases are generally customized to reflect the relative bargaining leverage of the parties, the general state of the economy, the business climate in the particular area where the industrial facility is located, and the specific type of industry involved. This handbook covers key provisions, presenting the extremes and the typical “middle ground” that is hammered out during negotiations.
What constitutes abandonment of the property?
Caps on the amount of excess consideration payable to Landlord if Tenant gets lucky (i.e. market conditions, a new big company investment suddenly make the value of a sublease or assignment skyrocket) or wants to change the use of the property?
When should the parties insist on a right to audit books and records?
What constitutes misuse of Tenant escrow funds?
Who is responsible for insuring alterations that the Landlord wants to keep after the end of the lease term?
Who pays attorney's fees or arbitrator's fees?
Robert Duncan is a Managing Principal of Structured Equity Advisors where he is chiefly responsible for real estate finance, development and capital markets advisory services in Canada, the United States, and Mexico. He was previously the Founder and Head of the Structured Equity Division of CBRE Melody of CB Richard Ellis (NYSE: CBG). Prior to that time, he was one of the top three industrial tenant representatives for CB Richard Ellis worldwide. In 25 years, he has participated in over 500 transactions totaling 30 million square feet in 110 markets throughout North America.
He is a recognized expert in negotiations and his advice is frequently sought after for creative solutions to complicated and delicate international issues. He has helped to shape the debate on the inherent conflicts-of-interest regarding dual representation of industrial occupiers. He has spoken before the Industrial Asset Management Council, the Society of Industrial and Office Realtors, the CCIM Institute, National Association of REALTORS’ Commercial Division and CoreNet Global. He was a frequent contributor and teacher at CB University, CB Richard Ellis’ highly acclaimed educational facility.
He is a Charter Member of the Industrial Asset Management Council Board of Directors, the Education and Research Committee, past Co-Chairman of the Membership Committee, Co-Chairman of the Board Certification for Industrial Real Estate Committee, Co-Chairman of the Industrial Lease Clause Manual Committee, a member of the Associate Advisory Committee, a member of the Surplus Property Clearinghouse Committee, and past Western Region Co-Chairman of the Regions Committee. He completed the Industrial Asset Management Council’s Leadership Development Program and was awarded the designation as an “IAMC Fellow.”
Mr. Duncan graduated from the University of Norte Dame with a Bachelor of Business Administration Degree in Accounting and played on the 1977 National Championship Football Team. He graduated from DePaul University College of Law as a member of the Law Review. He is Board Certified for Industrial Real Estate, BCIR, by IAMC (only 5 awarded worldwide), Board Certified for Corporate Real Estate, BCCR, (only 48 awarded worldwide), he is a Senior Leader for Corporate Real Estate, SLCR, by CoreNet Global, he is a Certified Commercial Investment Member, CCIM, (past Chapter President), and a Dual Designation (Office and Industrial) Member of the Society of Industrial and Office Realtors, SIOR. He was presented the Key to The City of Socorro, Texas for representing one of the largest transactions in the country, The City of El Paso El Conquistador Award for Outstanding Service, The William C. Jennings Lone Star Trophy Award presented to one real estate professional per year and was recognized as one of the Top 5 Mexico Investment Advisors by GE Capital Real Estate.
Robert resides with his wife in Southern California.
Phil Hammel is with the Honeywell real estate team as Director, Real Estate Development, where he is responsible for the company’s Brownfield portfolio with an emphasis on rehabilitating vacant manufacturing sites and reintegrating them into the local economic base. He was previously with Unisys as real estate director for its defense division.
He is a recognized expert in commercial and industrial real estate leases and has been a frequent speaker on these topics at real estate and facility professional association gatherings. For the past several years he has served as co-chair of the Research and Education Committee for the Industrial Asset Management Council (IAMC). He has helped to shape the tenant advocacy debate on industry conventions that have tilted the playing field toward landlord/lender interests as the norm for prevailing lease “boilerplate” offered-up as the starting point of lessor agreements. He has taught the Principals of Corporate Real Estate at George Washington University in the District of Columbia and was the founder of the International Facility Management Association’s Real Estate Council. In 2005, Dr. Hammel was selected by the California Chapter of CoreNet Global as its Real Estate Executive of the Year.
He is a Charter Member of the Industrial Asset Management Council and was active with IFMA, CoreNet Global, and ACRE, earning BCCR, SLCR, and BCIR designations from these national organizations. He completed the Industrial Asset Management Council’s Leadership Development Program and was designated an “IAMC Fellow.”
Dr. Hammel graduated from the University of California, Los Angeles with a Ph.D. in Higher Education. His undergraduate degree from California State University, Fullerton, was in Business Management.
Phil resides in Southern California with his wife and three children.
The initial version of the book covers these 15 basic provisions:
2. Affirmative Obligations
3. Negative Obligations
5. Loss Of Premises
8. Landlord’s Rights
11. Environmental Clauses
13. Real Estate Taxes
15. Assignments And Subleases