Negotiating CAM Provisions in Commercial Leases: Standard Inclusions, Capped CAM, Fixed Costs, and Gross Leases

Commercial Leases
Commercial leases often require tenants in a multi-tenant development (such as a shopping center or office building) to pay CAM charges in addition to monthly rent. These lease provisions often are misunderstood or taken for granted by landlords and tenants and, as a result, are frequently violated, knowingly or otherwise.

Sophisticated tenants require CAM charges to be "actually paid or incurred" or "expended" by the landlord to be reimbursable, and they are careful to prohibit landlords from passing their overhead on as disguised CAM charges. To guard against this practice, tenants should negotiate (and then review) their leases carefully, require landlords to deliver "reasonably detailed statements" of CAM charges as often as the lease requires, and should scrutinize those statements to ensure that all charges are allowed by the lease.

CAM charges often include property management fees. In addition, most leases permit the landlord to estimate CAM charges and force tenants to pay their share of those estimates monthly. Generally, they require the landlord to reconcile or justify the actual CAM charges to its tenant after the end of each year. Commercial landlords that also manage the project themselves often charge tenants, in addition to CAM expenses incurred, an arbitrary, "industry standard" percentage of the rent as "a property management fee," even though the lease does not expressly provide for that, and no third-party management fees are paid or incurred by the landlord.

When the CAM charges are based on actual costs, a tenant might want to negotiate a cap on how much they will be required to pay for their share of common area maintenance. Putting a cap on CAM charges helps protect the tenant from their lease expenses increasing outside of their budget or sudden surprises at the beginning of the year. In turn, this adds some risk to the landlord to cover additional expenses themselves.

With fixed CAM charges, property owners set a flat fee for common area maintenance and usually add small annual increases to that fee to cover the cost of inflation. Tenants may still want to review the property expenses to ensure their CAM charges aren't significantly higher than they should be. Fixed CAM charges can either apply to property taxes, insurance, and actual maintenance costs or only to maintenance costs while leaving the property taxes and insurance adjustable.

Listen as our authoritative panel discusses the best practices in negotiating CAM provisions, what types of provisions to include, and when to choose between a capped or fixed cost CAM provision.
Watch Now

Spotlight

Real Estate Asset Management's complexity and impact on portfolio performance have affected businesses and investments. Explore insights to simplify the process.

OTHER ON-DEMAND WEBINARS

Enterprise Tech: Investment Management Solutions (Part II)

Automating commercial real estate ‘back end’ tasks is a major objective for running the enterprise efficiently and freeing up important resources for strategic planning and catalyzed innovation. This series kicks off with a deep dive into the digital infrastructure of most commercial real estate companies. It continues with reviewing opportunities for investment management automation and introduces proven use cases of process automation in commercial and corporate projects. Thought leaders from some of the most automated real estate organizations in our market share insights on their integration initiatives and talk about the challenges and benefits of their own process automation projects. There are multiple investment management enterprise solutions on the market but picking the right set for your organization can be a challenging endeavor. This session features commercial real estate industry experts discussing their vendor selection process, the scope of their implementation, subsequent integrations, and their technology roadmap.
Watch Now

The Role of "Filtering" in Housing Affordability

Traditionally, the majority of housing affordable to many families has come through “filtering” – as apartment homes grow older, they gradually become part of the “naturally occurring affordable housing.” Following the Great Recession and Global Financial Crisis, this process reversed as value-add investors rehabbed apartments into higher rent classes to make up for the lack of new construction.
Watch Now

Construction Management Agency: Not at Risk?

Lorman Business Center

As in-house expertise declines, public and private owners of construction projects are increasingly outsourcing the management and administration of their construction projects to professional construction managers-agents. Use of professional construction managers can help protect owners from liability to other project participants because construction managers are often more knowledgeable and better qualified than an owner's personnel to properly address claims.
Watch Now

Completion Guaranties in Construction Lending: Key Provisions for Lenders and Guarantors

A principal concern for the construction lender is that the borrower will fail to complete the project on budget, leaving the lender to oversee the construction and to fund cost overruns. Under a completion guaranty, the sponsor or other qualified third party agrees to complete the project and is responsible for the payment of cost overruns. Construction lenders will typically include a carry component to the completion guaranty, and/or a separate carry guaranty, which requires the guarantor to pay debt service and other carry costs until the project is completed or reaches stabilization or until the loan is repaid. Listen as our authoritative panel examines various aspects of completion guaranties and provisions that are high priority concerns for lenders and guarantors. The panel will also discuss provisions that can limit a guarantor's obligations under the guaranty and factors that might affect the ability of counsel to negotiate those provisions.
Watch Now