Commercial Property Management – Tenancy Schedule Tips Tools and Tactics

The tenancy schedule is the tool of choice for a property manager or leasing manager in a commercial or retail property investment. It is the tenancy schedule that will keep the property manager up to task on forthcoming events and dates.

Often you find that the tenancy schedule is not up to date, so if anyone gives you such a document, treat it with the caution it deserves, and check it out completely before you act on the information contained therein.

So let’s say that you have a great tenancy schedule that you know is totally accurate. I get many questions about what I would want to see in a tenancy schedule. Here are my main priorities:

  • Details of the tenant name, lease, and full contact detail for emergencies
  • Tenancy identifier or suite reference that comes from the plan for the property
  • The area of the tenancy in m2 or ft2 (depending on your unit of measurement)
  • The % of the tenant area to the building net lettable area
  • The rent $’s per annum, per month, and per unit of measurement (m2 or ft2)
  • Lease start date
  • Rent start date
  • Lease end date
  • Term of lease
  • Option term of lease
  • Anniversary dates and reminders for rent reviews, options, expires, renewals, renovations, and make good obligations
  • Outgoings charges for each tenant on the basis of area and monthly charge
  • Outgoings budget for the building
  • Total outgoings recoveries for the property on a currency and % basis
  • Types of outgoings to be charged to the tenants
  • Insurance obligations of the tenant
  • Rental guarantee details or bonds held
  • Provision for critical dates relating to any important lease term or condition
  • Maintenance obligation details of the tenants

This list is not finite and you can add your own extra priorities, I would however make sure that it is totally correct and maintain it to the highest level of accuracy. When you do this you can stay on top of important upcoming events that will impact the occupancy or rental of the property.

Whilst you can buy ‘off the shelf’ software programs that display this above information, that can be quite expensive for those commercial and retail property managers that are first entering this type of property. The alternative is to create some simple spread sheet that contains the data; in saying that, it is essential that great care is taken to maintain the spread sheet that you create. Any errors in the tenancy schedule can destroy your landlord, your business, your tenant, your reputation, and the property. Accuracy is paramount.

4 Guidelines For Claiming Rental Property As a Business on the FAFSA

Rental Property on the FAFSA has always been an area of contention in my mind.  The manner these assets are listed on the FAFSA can mean the difference of thousands of dollars in financial aid.   For the government to tell you what is and is not a business enterprise that is making money kind of frosts me.  The 2009-10 FAFSA Application and Verification Guide states the following…

At times a student or parent will claim rental property as a business.  Generally, it must be reported as real estate instead. A rental property would have to be part of a formally recognized business to be reported as such, and it usually would provide additional services like regular cleaning, linen, or maid service.

If at all possible, you want to claim real estate as a small business, and therefore qualify for the small business exemption on the FAFSA form.  Here are a few guidelines to follow which make claiming real estate as a business much easier.

1.  Organize under a separate legal entity – Don’t hold rental properties directly in your name and expect them to fly with a financial aid officer.  They should always be organized under a C-corp, S-corp, LLC, or similar entity.  This is by far the most important qualification to be considered a business asset.

2.  The more activity the better – If you just have one piece of property that you rent out, or if you have a vacation cottage on a lake that maybe you rent once or twice during a season; don’t expect that to be considered a business asset.  The more activity you have in real estate the better.  You need to be able to demonstrate substantial levels of material participation and activity.  If you have multiple properties and active participation in managing them, it will strengthen your case.  This is one area where going big and acquiring more assets will help you.

3.  Show associated activity – The following activities showing in your corporation may also indicate more business activity, rather than just rentals:

  • Develops or redevelops
  • Constructs or reconstructs
  • Acquires
  • Converts
  • Operates or Manages
  • Brokers
  • Other business activity associated with the property

4.  Other activities – There are other signs or activities which will add weight to listing real estate as a business operation:

  • Registering for appropriate state and local permits
  • An employer identification number (EIN)
  • Fictitious name registration or DBA for the business
  • Separate business checking account

These four guidelines will definitely strengthen your hand in getting that small business exclusion on the FAFSA form.  But it is not a black and white standard.  Some schools will let you keep the exclusion, others will not.  My recommendation is when in doubt, list the property as a business.  Make the school take the initiative to prove it otherwise.

Texas Real Property Law for Commercial Landlords

I have found that landlords generally face the same set of issues and have the same set of questions pertaining to their rights, duties and obligations as landlords under Texas law. The answers to these questions depend on whether residential tenants or commercial tenants are involved. Although commercial and residential property ownership and operation have some similarities, the differences are numerous and diverse enough to justify separate treatment for each area. This article is intended to discuss issues related to commercial property with commercial tenants only. This article is my attempt to create a quick and very general reference guide on the rights, duties and obligations of commercial landlords and operators under the Texas Property Code. It is by no means complete, but hopefully is informative enough to assist the reader in asking informed questions of legal counsel and thus be more efficient and economical while consulting legal counsel.

You should not take this article as legal advice, and I strongly urge you to seek competent legal advice for your specific situation. The Texas legislature updates and passes new laws relating to landlord/tenant issues on a regular basis. In addition, Texas courts regularly interpret these laws. Thus, the laws discussed in this article are in effect as of December 2005. I have not assumed any duty or obligation to update this article beyond this date.

I. Duty to Mitigate

If a tenant abandons the leased premises in breach of the lease, the landlord has the duty to mitigate (lessen) the damages that the landlord would experience as a result of the abandonment. Thus, the landlord should not let the premises lie vacant in hopes of being able to recover lost rents from the tenant. This duty to mitigate damages may not be waived by the tenant, so any provision in the lease that tries to waive this duty or exempt the landlord from liability is void.

II. Security Deposit

A security deposit is any advance of money, other than a rental application deposit or an advance payment of rent, that is intended primarily to secure performance under a lease.

III. Retention of Security Deposit

Before returning the security deposit, the landlord may deduct from the deposit damages or charges for which the tenant is obligated under the lease or resulting from a breach of the lease. However, normal wear and tear (does not include deterioration that results from negligence, carelessness, accident or abuse) may not be withheld from the security deposit.

If the landlord retains any portion of the security deposit, the landlord must refund the balance of the security deposit and give the tenant a written description and itemized list of all deductions. However, this description and itemized list is not required if the tenant owes rent and no controversy exists concerning the amount of rent owed. The refund and written description and itemized list of all deductions is not required until the tenant gives the landlord a written statement of the tenant’s forwarding address for the purpose of refunding the security deposit. However, failure to provide a forwarding address does not cause the tenant to forfeit its right to receive a refund or a description of deductions.

IV. Refund of Security Deposit

A landlord must refund the security deposit not later than the 60th day after the date the tenant surrenders the premises and provides notice of the tenant’s forwarding address.

V. Change of Landlord/Owner and the Security Deposit

The new owner or landlord of the leased premises is liable for the return of the security deposit starting from the date title to the leased premises is acquired, except where the new owner acquired the premises by foreclosure through a real estate mortgage. However, the former landlord or owner remains liable for the security deposit received while the person was the owner or landlord until the new owner delivers to the tenant a signed statement acknowledging that the new owner has received and is responsible for the tenant’s security deposit and specifying the exact dollar amount of the deposit.

VI. Liability of Landlord for Security Deposit

A landlord who in bad faith retains a security deposit is liable for an amount equal to the sum of $100, three times the portion of the security deposit wrongfully withheld, and the tenant’s reasonable attorneys fees incurred in a suit to recover the deposit. It is presumed that a landlord who fails to return a security deposit or to provide a written description and itemized list of deductions on or before the 60th day after the date the tenant surrenders possession is acting in bad faith.

VII. Preventing Access to Leased Premises

A landlord may not intentionally prevent a tenant from entering the leased premises except with permission of the court unless such prevention results from (i) bona fide repairs, construction or an emergency, (ii) removing the contents of the leased premises abandoned by a tenant or (iii) changing the door locks of a tenant who is delinquent in paying at least a part of the rent. The lease may alter this provision.

VIII. Changing Lock Due to Delinquent Payments

If a landlord changes the door lock due to delinquent rent payments, the landlord must place a written notice on the tenant’s front door stating the name and address or telephone number of the individual or company from which the new key may be obtained. The new key is only required to be provided during the tenant’s regular business hours and only if the tenant pays the delinquent rent. The lease may alter this provision.

IX. Landlord’s Removal of Property After Abandonment by the Tenant

A landlord may remove and store any property of a tenant that remains after the premises has been abandoned. The landlord may also dispose of the stored property if the tenant does not claim the property within 60 days after the date the property is stored. The landlord must deliver by certified mail to the tenant at the tenant’s last known address a notice stating that the landlord may dispose of the tenant’s property if the tenant does not claim the property within 60 days after the date the property is stored. A lease may alter this provision.

X. Abandonment by the Tenant

A tenant is presumed to have abandoned the premises if goods, equipment or other property, in a substantial enough amount to indicate a probable intent to abandon the premises, is being or has been removed from the premises and the removal is not within the normal course of the tenant’s business. The lease may alter this provision.

XI. Interruption of Utilities

If the tenant pays for utility services directly to the utilities companies, the landlord may not interrupt or cause the interruption of such services unless the interruption results from bona fide repairs, construction or an emergency. A lease may alter this provision.

XII. Removal of Doors, Windows, Locks, Hinges, Etc.

A landlord may not remove a door, window, attic hatchway, lock, hinge, hinge pin, doorknob or other mechanism connected to a door, window or attic hatchway cover from the leased premises. Additionally, a landlord may not remove furniture, fixtures or appliances furnished by the landlord from the leased premises. However, the landlord may remove these items for a bona fide repair or replacement, which must be promptly performed. A lease may alter this provision.

XIII. Landlord May Terminate Lease Due to Public Indecency Conviction of Tenant

A landlord may terminate a lease signed or renewed after June 15, 1981 if the tenant or occupant uses the property for an activity for which the tenant, occupant or any of their agent or employee is convicted of public indecency (prostitution, promotion of prostitution, display or distribution of obscene materials, sexual acts with persons under the age of 18, etc.) and such person has exhausted or abandoned all avenues of direct appeal from the conviction. Notice of termination must be by written notice within six months after the right to terminate arises. The landlord obtains the right to possess the property on the 10th day after the date of notice is given.

XIV. Notice Requirement Prior to Eviction

The landlord must give a tenant who defaults or holds over beyond the end of the term at least three day’s written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties contracted for a shorter or longer period of time in a written lease or agreement.

The notice to vacate must be given in person or by mail at the premises in question. If notice is delivered in person, it may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail or by certified mail, return receipt requested, to the premises in question. The notice period starts from the day on which the notice is delivered.

Copyright 2005, Tri Nguyen