office building where a commercial lease agreement is being negotiated

What Is A Commercial Lease?

A commercial lease is a legally binding contract made between a landlord and a business tenant. Much like a residential tenancy, a commercial lease gives a tenant the right to use the specific property for a business or commercial activity for a period in exchange for money paid to the landlord.

Picture with the number 10 for a top 10

The List

The failure to effectively negotiate a desirable commercial lease will directly impact the success of your company.

Our solicitors have put together a top ten list on factors to consider when negotiating a commercial lease to ensure the lease is in line with your company’s desires.

1. Ask For A Rent-Free Period

It’s always worth asking for a rent-free period. Although it may sound too good to be true, you will be surprised how many landlords will agree.

The main reason a landlord will provide a rent-free period is as an incentive to attract commercial tenants. Furthermore, some landlords will offer a rent-free period to cover any repair or alteration costs that the tenant will need to pay.

2. Consider The Duration Of The Term

The duration is the length of time you will agree to occupy the property. Our solicitors strongly advise that you take time to consider how the current commercial lease term reflects your business’ future expansion plans.

There are pros and cons to both short-term and long-term leases. For example, if your business is just starting, our solicitors would advise a shorter-term lease because it offers your business the flexibility to move and expand. Whereas, if you are a large company that has a large workforce and wants long term security from the premises, then a long-term lease is a better option.

3. Try To Avoid Including Your Personal Name

Signing a commercial lease can expose you to significant personal liability. Ideally, you should sign any lease in the name of a separate limited company rather than in your name.

By not signing the lease in your name, the company becomes liable for the debts imposed by the lease. 

However, not all landlords will agree to this, especially if the company has little to no financial history. An experienced solicitor can help negotiate a compromise in this circumstance to try and ensure your name is not on the lease.

4. Avoid Personal Guarantees

In cases where the lease is taken on in the name of a limited company, the landlord may ask the directors of the company to provide personal guarantees. This goes against what the tenant is trying to achieve by having a limited liability company to trade through.

If the landlord is looking for some security and is insisting on including personal guarantees, it’s beneficial to negotiate a compromise with the help of a solicitor. You can offer the landlord a rent deposit (typically three months’ rent), which is given back to the commercial tenant on expiry of the lease, or before by agreement.

5. Negotiate Repair Obligations

A ‘full repairing lease’ means you will be responsible for all repairs to the property inside and out. This includes the structure and any rebuilding works. As a tenant, you should ideally only be liable for interior maintenance. The landlord should be the one who is responsible for the general maintenance of the structure.

Additionally, a ‘full repairing’ obligation may require the tenant to put the property in a better state than it was at the start of the lease. The tenant should negotiate a repair condition to be restricted to giving the property back in the condition it was at the beginning of the lease. This can be supported using a ‘schedule of condition.’ A schedule of condition is a record of the state of the property from the beginning of the lease.

If the lease is particularly long, it may be worth having a building surveyor inspect the building to anticipate what the repair costs may be over the lifetime of the lease. If crucial and expensive works are due, you can negotiate on this point with the landlord, or ask that they undertake the works at their cost.

6. Ensure There’s A Break Clause

One of the essential elements to incorporate into a lease is a ‘break clause.’ A break clause gives the right for you to end the lease early by giving the landlord an agreed period of notice.

This is a beneficial clause to include, as it gives you the flexibility to terminate the lease. Economic factors and personal circumstances can impact your business, so if you wish to move into a different property, or things do not work out, you will have the security that you can end the lease.

Break clauses can be drafted to ensure only the tenant can execute it, offering security throughout the lease term. They can also be used to offer flexibility and cut short a long lease, in the event your business outgrows the property.

7. Decide Security Of Tenure

The Landlord and Tenant Act 1954 outlines in a commercial lease that the default position is the tenant has the security of tenure. Security of tenure means the tenant has the right to stay in their business premises until the lease ends, and that they have the right to renew their lease at the end of the existing lease term.

Security of tenure is only applicable on leases longer than 7 years, but some landlords may ask you to opt out of having it, especially if the area is undergoing redevelopment. 

If you are being asked to agree to a commercial lease outside of the landlord and tenant act, it’s vital to seek professional legal advice. A qualified solicitor will ensure you fully understand the implications before agreeing to give up these rights.

8. Look Into A Sub-Letting Clause

At the very beginning of the lease or as your business grows, you may consider sub-letting some of the premises to generate some additional income, or to off-set the rental payment.

This sub-letting clause is important to retain flexibility. The clause allows you to pass on the premises to another lessee. If your landlord is not willing to accept a break clause, then this may be the next best option for your business.

9. Don’t Pay The Landlords Legal Costs

You don’t have to pay the landlord’s legal fees! This is not standard practice. Each party should pay their legal fees where possible.

Remember that all the terms of the lease are capable of being negotiated. For this reason, it’s vital to instruct a qualified commercial property solicitor to help secure your company a favourable commercial lease.

10. Seek Legal Advice For A Commercial Lease

Trying to secure a beneficial commercial lease is a challenging and complicated process that will include a lot of negotiation. This is where a qualified solicitor is needed.

As a result, it’s recommended that you seek a solicitor to review the lease to avoid any disruptions an unfavourable commercial lease can have on your business. 

Appointing a solicitor at the beginning of the negotiation process will ensure the lease is in line with your company’s desires. Furthermore, even if the commercial lease is fair, you will at least gain that peace of mind that you have an excellent commercial lease agreement.

One of our solicitors working on negotiating a commercial lease agreement