In a real estate market where failing loans are more common than in years past, tenants should be aware of the concept of subordination. Any lease entered into subsequent to a loan being placed on a particular property will be subordinate to that loan. In the event that a lender takes ownership of a property through foreclosure, or other such means, it is under no obligation to honor a lease that commenced subsequent to the loan that was placed on the property. Clearly, the potential impact this could have on a tenant is devastating. Tenants considering entering into a long term lease and/or spending a great deal of money on improvements to a leased property should seriously consider investigating the solvency of the landlord and status of the loan to which their lease will be subordinate. In addition, tenants may want to consider making the receipt of a non disturbance agreement from the lender a condition for entering into a lease.

The ITC office building in Guam, (www.itcguam.net), has gotten a great deal of attention from the U.S. Government lately. As you may have seen in my profile, I'm the president of Fujita Property Guam, the company that owns and manages this 210,000 square foot office building. We are currently in various stages of negotiations with several U.S. Government tenants. As you may know, the job of negotiating leases on behalf of the Government belongs to the General Services Administration, (GSA).

Candidly I was shocked when I received the GSA's version of a request for proposal/solicitation. The document was over 100 pages. It was overwhelming to say the least. In addition to the volume of the solicitation, it required a great deal of attention to detail. Landlords are required to respond to a number of requests, surveys and questions. A potential property can be disqualified if just one error is made in response to the GSA’s solicitation. This is just the start of the process of leasing space to the Federal Government. If our building is selected, we will begin the process of negotiating the lease document and constructing the tenant improvements. I have been told that neither is easy because of the difficult requirements set forth by the GSA.  

Because of the importance of these transactions, I sought out a consultant that could provide guidance from start to finish. As it turns out, two former GSA employees have started a company that provides such consultation. It is called Unified Interest (www.unifiedinterest.com). They offer a comprehensive set of consulting services for dealing with the GSA.

Considering that the U.S. Government is expanding quite rapidly, the likelihood of leasing space to them is greater now than ever. Landlords, and brokers for that matter, should seriously consider utilizing the services of expert consultants to help them through the rigorous process of completing a lease transaction with the U.S. Government. Here's a link to an interesting article relating to GSA leasing. www.ccim.com/cire-magazine/articles/gsa-way

The commercial and investment real estate business has been very soft for the last 2.5 to 3 years in this area. 2010 saw a reasonable up-tick in leasing activity, but sales remained substantially less than 50% of what we typically experience. Much of our investment activity over the past several years was driven by "1031" tax deferred exchange transactions. That has almost completely dried up.

In the last 3 - 4 months, we noticed a definite increase in leasing activity, some sales activity and substantially more prospects calling and looking at properties to lease and to purchase. Investors' psychology has begun to turn, wherein they are now seriously considering making an investment with the cash they have been sitting on. They perceive the market is "bottoming out" and perhaps now is the time to buy. Returns on alternative investments are at historic lows, and real estate can still deliver an honest 6% to 10% cash return.

There's plenty of commercial money available from various lenders....loan to value ratios are probably down in the 60% to 70% range (requiring more cash equity) and securing a loan at a fixed rate for 10 years or more is challenging to get, most want to re-price or call the loan in 5 years. However, interest rates remain at an all-time low. Depending on the property type, rates will range from low 5% to 6.5%, maybe 7%.

Even during this recent down turn in the economy, sellers have been very reluctant to recognize the fact that their property may have lost 20% to 30% of it's previous value...Thus, have not been motivated to sell. That's now beginning to change and we're seeing signs from sellers that they are becoming more motivated. This will create an environment where "deals" can be structured. In addition, we are hearing that some of the banks want to rid themselves of their foreclosed properties.

Higher than normal unemployment still hampers a robust rebound in our area (although we're better off than much of the nation) but considering all of these elements, 2011 looks like it will be a much improved year.

I worked on a large office lease transaction and part of the deal involved determining the exact square footage of the floor that the tenant would be occupying. We, the landlord, hired an architect to measure the space as did the tenant. Both architects were instructed to use the BOMA standard as their basis for measuring the space. As it turns out, the architects both came up with different results. As a resolution, we agreed to hire a third architect to measure the space. That architect, too, came up with a different number. Three professionals using an exact standard of measurement could not agree upon the square footage of a single space. This may sound odd, but it is not unusual. In fact, it is not uncommon for the actual square footage of a building to be different than what is shown on the original building plans. Obtaining an accurate measurement of any space or building can be tricky at best.

With that in mind, all leases have a section where the premises are described. Many people feel compelled to include the square footage as a part of that description when preparing the lease. I urge against that. It opens the door for disputes during the term, such as tenants wanting to renegotiate their rent based upon a discrepancy in the square footage of the space. In other words, in the lease the landlord states that the square footage is 1,000 square feet, but two years into the term the tenant decides to measure the space and comes up with 975 square feet. In addition, the California Court of Appeal has weighed in on this matter in the matter of McClain v. Octagon Plaza. For further information visit http://www.gordonrees.com/publications/viewPublication.cfm?contentID=576 

If it is necessary to provide the square footage in the lease, have an attorney draft language that specifies how the space was measured and by whom, and that the Lessor and Lessee agree upon same.