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Many landlords continue to use the same commercial lease form that has been in place for, in some cases, decades. Not only has the law surrounding tenant and landlord rights changed, but the expectations of both buyer and lenders have also evolved. With this in mind, there are a few must-have items in a modern commercial lease form.

Although most forms require an estoppel certificate, many do not require reasonable turnaround periods. An estoppel certificate is a document that a tenant would execute which certifies that the copy of the lease attached to the document contains all of the terms of their relationship with the landlord. This is important for buyers and lenders because it ensures that no side agreements which may reduce the potential income of the property exist. Not only is it important to require that tenants produce signed estoppels on demand, but also that they produce them quickly. A timeframe of 14 days is fair for both the tenant and landlord, although 7 would be optimal. Along with this, it is important to require tenants to both execute and rapidly turn around SNDA forms. These Subordination, Non-Disturbance and Attornment Agreements are necessary to allow an owner or prospective owner to obtain financing on the building.

Quite possibly the most important thing to get from a tenant, and one of the rarest things to find in a modern lease, is as much financial information as possible, updated as regularly as possible. The absolute minimum that buyers and lenders will typically look for on a retail property is three years of annual sales data. This helps both parties understand a number of important things. With this data, they can project the tenant’s likelihood of survival, their likelihood of renewal, and the potential for increased, or decreased, rental income in the future. Any additional information, such as profit & loss statements will be helpful, and it is important that any confidentiality provisions will not prevent the landlord from disclosing the data to lenders and prospective qualified buyers.

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