By: Tim Miedona and Nicole Cuccaro
During commercial leasing negotiations, landlords and tenants will often extensively negotiate the terms of a cap on the controllable operating expenses under a lease. Often, however, the issue of whether the cap will be cumulative or non-cumulative is glossed over in the lease language. Based on whether the cap is cumulative or non-cumulative, there could be a significant difference in the actual impact of the cap on expenses.
To take a step back, typical in commercial leases of shopping centers and office buildings, Common Area Maintenance (“CAM”) expenses, also referred to as “operating expenses,” are a separate, additional rent expense for day-to-day operations of the property. These expenses are either controllable, which are expenses a landlord has influence over, or uncontrollable, which are those expenses that are dictated by a third party and thus outside of a landlord’s control. For example, controllable operating expenses may include anything from parking lot maintenance and window washing, to trash removal and landscaping. On the other hand, uncontrollable operating expenses include property taxes and building insurance.
During lease negotiations, tenants often request a “cap,” on the controllable operating expenses from year to year (typically in the range of 3% to 10% annually). For example, if tenant and landlord agree on a 5% annual cap on controllable operating expenses, this means that tenant’s controllable operating expenses the following year will not exceed 105% of the cost from the prior year. These caps on CAM expenses can either be negotiated as cumulative or non-cumulative. While both set a ceiling on the annual increase in controllable operating expenses that can be passed on to a tenant, one is often favored by landlords and the other favored by tenants.
“Operating expense caps, weather they’re cumulative or non-cumulative, continues to be one of the more complex issues that landlords and tenants face in lease negotiations,” stated Jordan Bohannon, Vice President, Avison Young. “However, the concept is important as it can be challenging to budget for potential overages when CAM expenses cannot be precisely accounted for on an annual basis.” The next time you are negotiating the terms related to operating expenses in a lease, you should carefully read the operating expense provision to make sure that the language matches your intended outcome.
If you have any questions about commercial leasing, please reach out to one of the Lowndes Leasing Lawyers.