Tag Archives: Jason Wolf
Let’s explore the sale and leaseback of commercial real estate. With COVID-19 affecting so many businesses many may be looking at their real estate holdings to see if they should entertain a sale-leaseback transaction with a nonprofit real estate foundation for a particular property to free-up cash tied up in their real estate. For mission critical buildings that are being leased from non-profit or for-profit landlords, they may consider negotiating with the property’s owner for a sale-leaseback with a nonprofit real estate foundation, attempting to reduce rent expense. A nonprofit real estate foundation is a third-party nonprofit entity that sources low-cost capital to acquire or develop properties used by hospitals in furtherance of their charitable mission. The sale-leaseback option for so monetizing these non-core assets will work as well with traditional sources like insurance companies, REITs and other institutional investors.
Confer with the professionals at WCRE or ask us for a seasoned real estate or tax attorney but here’s one technique Abo has seen work well with business clients. Although real estate is generally thought of as an illiquid asset, some liquidity can be achieved by taking out a loan backed by the property. Alternatively, a sale and leaseback may be used effectively if a company’s balance sheet is burdened with excessive debt or just having difficulty in obtaining new capital. Typically, the transaction involves the company owned property being sold to a third party and then leased back to the company under a long-term lease.
Sale and leaseback transactions may be on the rise but clients need to be aware that the IRS often focuses on transactions between closely-held corporations and their controlling shareholder to make sure that these transactions benefit the company as well as the shareholder. In one common type of sale and leaseback transaction, the company sells the land with a building on it to the shareholder and, in turn, the shareholder leases it back to the company. Some of the financial and tax benefits we’ve seen have included:
• The rental deductions the company could take might be significantly larger than the former depreciation deductions if the property had been in service for many years.
• After the sale and the leaseback transaction, the shareholder’s basis in the property will be its fair market value which is usually greater than the price paid for the property by the corporation. Thus, the shareholder’s depreciation deduction would be much greater than what was previously available to the corporation (also still need to consider the tax consequences of the sale to the corporation).
• The sale and leaseback may enable the shareholder to generate passive rental income that could be offset
against passive losses of the shareholder.
The IRS would obviously be concerned that these transactions have economic substance and that they are
based on reasonable market conditions, and not just designed to generate larger tax deductions. Thus, for
a sale to be valid, the controlling shareholder should have taken an equity interest in the property and also
assumed the risk of loss. For the leaseback to be valid, four tests come to mind that really should be met:
1. The useful life of the property should exceed the term of the lease.
2. Repurchase of the property by the corporation at the end of the lease term should be at fair market value and not at a discount.
3. If the leaseback allows for renewal, the rate should be at a fair rental value (speak to WCRE, not necessarily the accountant).
4. The shareholder should have a reasonable expectation that he or she will generate a profit from the sale and leaseback transaction based on the value of the property when it is eventually sold and the rental obtained during the lease term.
I suspect one of the biggest risks for the seller-lessee is the loss of a valuable asset that could have substantially appreciated over its useful life. Also, the rental market could drop, leaving the seller locked into a rental rate in excess of fair value. On the other side of the table, the seller could move or default, leaving the buyer with unattractive real estate in a soft market.
Even if there are no other problems, the benefits of the deal could be substantially reduced if the IRS deems that it is merely a “financial lease.” In that case, the IRS will treat the seller-lessee as the true owner of the real estate, with all the appropriate tax assessed, and the buyer-lessor will be treated as a lender-mortgagee.
Since sale and leaseback transactions can be quite complicated and also have to pass IRS muster, as I stated earlier, whether you are a buyer, seller or investor, you are well advised to consult with WCRE and seasoned real estate/tax counsel about your financial and tax consequences and the manner of structuring and implementing them to withstand possible IRS challenge.
FOR MORE INFORMATION:
Martin H. Abo, CPA/ABV/CVA/CFF is a principle of Abo and Company, LLC and its affiliate, Abo Cipolla Financial Forensics, LLC, Certified Public Accountants – Litigation and Forensic Accountants. With offices in Mount Laurel, NJ and Morrisville, PA, tips like the above can also be accessed by going to the firm’s website at www.aboandcompany.com.
Martin H. Abo, CPA/ABV/CVA/CFF
307 Fellowship Road, Suite 202
Mt. Laurel, NJ 08054
For more information, contact:
Now that you have PPP funds, we at Abo and Company want to point out certain steps you should take over the next eight weeks to ensure maximum forgiveness of your PPP loan.
Use the Funds for Forgivable Purposes. Forgiveness of your PPP loan depends largely on whether you use the money to pay forgivable expenses. These include (1) payroll costs (if you’re self-employed, these costs include the net profit amount from your business, as reported on your 2019 tax return), (2) interest payments on mortgages incurred before 2/15/20, (3) rent payments on leases dated before 2/15/20, and (4) utility payments under service agreements dated before 2/15/20. However, according to the Small Business Administration (SBA), not more than 25% of the forgivable loan amount (the amount of the loan used to pay forgivable expenses) may be attributable to nonpayroll costs. In other words, at least 75% of the loan must be used for payroll costs.
To help you meet this requirement, consider implementing the following best practices:
- Set up a separate bank account for PPP funds, or deposit funds into your business savings account and transfer the money to checking and payroll accounts when needed.
- If you feel that 75% of the loan won’t be used for payroll, consider modifying your payroll periods (from semimonthly to weekly, for example) or paying out bonuses toward the end of the eight-week period.
- Gather and analyze mortgage documents, leases, and utility bills to make sure obligations arose prior to 2/15/20. Each lender will likely want you to provide the documentation in a slightly different format, but it will be much easier to adapt if you’ve already collected your data.
- Track expenses in the general ledger. The general ledger tracking will be a good summary, but you will still need to include the details.
- If expenses are paid with a business credit card, make sure that portion of the credit card bill is paid with PPP funds before the end of the eight-week period.
Use a simple Excel spreadsheet to track your qualifying expenses. This will allow you to see your progress in real-time and project where you will be after 60 days. To substantiate the amounts listed in the spreadsheet, gather and organize your backup documentation. Although not foolproof, the attached excel sheet might help.
Keep Track of Employee Headcount and Salary Levels. We know you already do this, but extra care should be taken to make sure these numbers are accurate. For the next eight weeks, if your average number of full-time equivalent employees per month is less than the average during a base period, your forgivable loan amount will be reduced. The base period is either (1) 2/15/19 through 6/30/19, or (2) 1/1/20 through 2/29/20. Perhaps use the period that produces the best result.
Also, your forgivable loan amount will be reduced if salary levels are cut by more than 25%. For each employee who earns less than $100,000, you compare total salary paid during the next eight weeks with that employee’s salary during the most recent full quarter. If the reduction is greater than 25%, a corresponding reduction must be made to the forgiveness of your PPP loan. Note that this test requires the business to look at every employee individually.
If you have already laid off or furloughed workers, try to restore employee headcount and salary levels by 6/30/20. If you do so, any headcount and salary reductions that occurred between 2/15/20 and 4/26/20 will be ignored. Keep in mind you don’t have to rehire the same employees. Also, rehired workers don’t actually have to perform customary work duties. Before taking action, you should consult with your labor and employment attorney to work out the terms for rehiring workers.
Focus on Recordkeeping. This is crucial to obtaining maximum forgiveness of your PPP loan. At the end of the day, you have to show the bank you used the loan for eligible expenses. That’s why we suggest creating a spreadsheet of all eligible expenses as they’re incurred. We also recommend you maintain a special folder (electronic or otherwise) that contains the following documentation:
Employee headcount calculations. Since so many of our clients (and we) use an outside payroll processing company, it’s a good idea to save payroll reports reflecting gross wages paid for each payroll incurred during the period.
Document other costs under the definition of “payroll costs” in the CARES Act (employer contributions to health, dental, vision, FSA, HRA, and retirement plans). Collect invoices, statements, payment advices, evidence of automatic bank debits, etc., to validate these costs.
- Separate the employees (including owners) who are paid more than $100,000 annually, or $15,385 during the eight-week period, as qualified gross payroll is limited to that amount per employee/owner.
- Payroll tax filings (both federal and state).
- Mortgage documents, leases, and utility bills.
- Cancelled checks and payment receipts.
- Bank statements for the separate account used to pay forgivable expenses. If you didn’t set up a separate bank account, include copies of other bank statements with forgivable expenses highlighted to support any
- Electronic Funds Transfer (EFT) payments.
Get Ready to Apply for forgiveness of your PPP loan.
You may not apply for forgiveness of your PPP loan until at least eight weeks after receiving your PPP loan. When you’re ready, you will need an authorized representative to certify that (1) the documentation presented is true and correct and (2) the amount for which forgiveness is requested was used to retain employees, make interest payments on a covered mortgage obligation, make payments on a covered rent obligation, or make covered utility payments. Once the bank receives your loan forgiveness application, it has 60 days to review and either approve or deny it.
If, for some reason, only a portion of the loan is forgiven, you will need to fulfill all remaining payment obligations. The unforgiven portion of the loan will be subject to a two-year note with a 1% interest rate. Fortunately, no payments will be due for the first six months (although interest will continue to accrue). In addition, no collateral or personal guarantee is required, and there are no prepayment penalties.
While all the banks are generally allowing drawdowns on the PPP loan without significant documentation, detailed records will be important to support the loan amount to be forgiven. Technical guidance regarding the specific definitions and clarifications around which expenses are allowable will be forthcoming in the next several weeks (yeh, right) and should be monitored closely.
Follow these guidelines to help make the conversations around forgiveness of your PPP loan go smoothly with our new best friend – the banker. Frankly, the PPP process has worked best for us and the clients we counsel when we’ve communicated ahead of time with whichever loan officer we’ve worked with. The same holds true now if you are prepared. Keep the documentation organized electronically in a secure location on your server so you can adapt to your lender’s specific requirements. In June or July, the goal should be to have all the documentation at your fingertips to help make it easier for you to substantiate and maximize your loan forgiveness.
Martin H. Abo, CPA/ABV/CVA/CFF is a principle of Abo and Company, LLC and its affiliate, Abo Cipolla Financial Forensics, LLC, Certified Public Accountants – Litigation and Forensic Accountants. With offices in Mount Laurel, NJ and Morrisville, PA, tips like the above can also be accessed by going to the firm’s website at www.aboandcompany.com.
How our work environments and the use of architectural walls will change due to the COVID‐19 pandemic is changing daily (and sometimes hourly). Since many of you have asked my thoughts on the future of office architectural walls, I thought I would point to eight factors to watch. Much like the world changed after 9/11 and the 2008 recession, I fully expect the world to change after this global pandemic. As the world goes back to work and social distancing morphs into professional distancing, (and assuming the economy comes back quickly compared to 2008), I would offer these trends to watch.
1. Growth in Wall Market:
While the office footprint will shrink (many people have been working from home, and this will carry forward for some), the use of architectural walls in offices will continue to rise. I have already seen an uptick in inquiries around glass partitions, space separators and demountable offices. This should not be a surprise; glass lets natural light in, shows transparency and is a good space divider. As companies balance expensive office real estate, open floor plans and small group interactions, the real growth will be in open space dividers such as Allsteel Beyond Pavilion and Allsteel Viz
2. Room Size Will Shrink:
Conference rooms will morph into smaller huddle and collaboration spaces. Wework is cutting conference rooms in half to keep groups to a manageable and comfortable size. Collaboration will be important…just in smaller groups and with walls that meet the needs.
Video conferencing will continue. Technology will be required in each collaboration space, and it will be important
that camera and audio connectivity are seamless. Architectural walls have an important role to play in this transformation, as demountable partitions have great acoustics, technology integration and correct camera angles.
4. Traffic Patterns:
More thought will be given to how workers move through and in and out of office spaces. Adding an extra door to a conference room might help as “professional distancing” lingers with us for some time to come.
5. Air Quality:
Buildings will move away from minimal standards of fresh and clean air. Wall dealers will need to
partner with clients and designers around diffusor and circulation locations for better, fresher and cleaner air.
6. Healthcare Moves to the Office Environment:
Easily cleanable surfaces will be a focus, so there will be fewer fabric wall panels and wall materials that are difficult to clean. Look for manufacturers to follow some of the creative surfaces that healthcare uses and adapt them to business settings.
7. Fewer Touch points:
COVID-19 has made us keenly aware of how many things we touch every day. One of the most intriguing ways this will manifest itself will be in architectural walls with auto door openers and doors that swing both ways that you can push with your feet.
8. Changing Materials will be in Focus:
While some amazing new inventions are coming out from Hong Kong around self-cleaning door hardware using both photocatalytic and blacklight technology, older metals like copper, brass and bronze will make a strong comeback.
Bob Batley, COFCO
I am sure I will amend and change this list as we move forward, but it is a good way to get the conversation started. So, what did I miss? What do you see coming? I cannot wait to hear what your predictions! Bob Batley is the Vice President of Architectural Products at COFCO, a mid‐Atlantic regional commercial furniture and walls solution provider. With over 35 years of executive leadership in the hospitality, commercial construction, and work environment fields, Bob consults, speaks, and is a thought leader when it comes to the challenges of today’s fierce competitive work environments. Bob can be reached at BBatley@cofcogroup.com or follow him on LinkedIn, Twitter, and Instagram.
Let’s look at the key income tax provisions in the CARES Act. While a great deal of attention has been given to the availability of business loans under the Paycheck Protection Program, businesses can also take advantage of certain changes to the Internal Revenue Code (“IRC”) in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Here are beneficial provisions:
Bonus Depreciation of Qualified Improvement Property in CARES Act
Under the CARES Act, “Qualified Improvement Property” (“QIP”) is now classified as 15-year property that is eligible for bonus depreciation through 2022 and is subject to a 20-year life under the Alternative Depreciation System (ADS), effective for tax years beginning after December 31, 2017. Under Section 168 of the IRC, “QIP” includes any improvement to the interior portion of a nonresidential building placed in service after the building, other than (i) an enlargement of the building, (ii) any elevator or escalator, and (iii) any internal structural framework of the building. These changes effectively correct the Tax Cuts and Jobs Act of 2017 (“TCJA”), in which Congress inadvertently disqualified QIP placed in service after December 31, 2017 from 100% bonus depreciation.
Because these changes are retroactive, you may be able to amend your 2018 income tax returns or amend/adjust your 2019 returns (depending on whether those returns have been filed) to take advantage of the changes. Additionally, if these changes create a net operating loss (NOL) in 2018 or 2019, you may be able to take advantage of another provision in the CARES Act, described below.
Business Loss Provisions in CARES Act
The CARES Act allows taxpayers to carry back net operating losses (NOLs) arising in tax years ending after December 31, 2017 and before January 1, 2021 to the five (5) prior tax years. The Act also allows taxpayers to apply NOLs to offset 100% of the taxpayer’s income in tax years prior to January 1, 2021; previously, taxpayers were limited to applying NOLs to 80% of their taxable income. C corporations have the option to elect to file for an accelerated refund to claim the benefit of the carryback. Real Estate Investment Trusts (REITs) are excluded from the carryback provision, and NOL carrybacks cannot be used to offset income included under IRC Section 965(a). See IRC §172.
The CARES Act also removes the limitation on excess business losses for taxpayers other than corporations for tax years beginning after December 31, 2017 and before January 1, 2021. See IRC §461(l).
Business Interest Deductions
Under the TCJA, a taxpayer could deduct a portion of its business interest expense equal to business income plus 30% of adjusted taxable income (ATI) – essentially, taxable income without depreciation and certain other deductions. For tax years beginning in 2019 and 2020, the CARES Act increases the formula threshold to 50% of ATI. For partnerships, the increase to the ATI threshold is only applicable for tax years beginning in 2020. In calculating the deductible amount of business interest expense, taxpayers (including partnerships) may also elect to substitute 2019 ATI for 2020 ATI. See IRC 163(j).
Charitable Contribution Deductions in CARES Act
The CARES Act increases the limitation on charitable contributions for corporations from 10% of taxable income to 25% of taxable income, and the limitation on contribution to food inventory is increased from 15% to 20%. See IRC §170.
In addition, for individuals who itemize their deductions, the CARES Act suspends the percentage limitation on the deduction for qualifying charitable contributions for the 2020 tax year. This means that taxpayers who itemize may effectively deduct qualifying charitable contributions up to an amount equal to their adjusted gross income. Previously, the deduction for qualifying charitable contributions was limited to 60% of an individual taxpayer’s adjusted gross income. See IRC §62.
This e-alert is provided by Hyland Levin Shapiro LLP as a general summary of the topics discussed; it does not replace the need to consult with a legal or tax professional and is not intended to be a substitute for competent professional advice, including any advice regarding the effect of the CARES Act on your particular business. If you have any questions about the provisions summarized above, please contact Stephen M. Geria at firstname.lastname@example.org or 856.355.2920 or Harvey Shapiro at email@example.com or 856.355.2990.
To ensure compliance with U.S. Treasury Department Circular 230, which governs all practitioners before the Internal Revenue Service, we are required to inform you that any tax advice that may be contained in this communication is not intended or written to be used, nor can be used, by any recipient for the purpose of (i) avoiding penalties that might be imposed pursuant to the Internal Revenue Code or U.S. Treasury Regulations, or applicable state or local law or regulation; or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
Let’s explore architectural walls. Architectural walls create spaces that you need for today and tomorrow. The open transparent space attracts high achievers, while the huddle rooms offer privacy for meetings and phone conversations. Suppose your business is at a turning point. Your past success has you eyeing the next step. Growth is right in front of you, if only you could scale to meet the demand.
You know your office work environment needs to morph, change, and grow to help you meet these challenges, but how? Walk around your office and observe your teams working… what do you notice?
- The last couple “A” candidates chose a competitor
- Your café/lunch area is only used for eating
- Your open floorplan has your team taking phone calls in their cars
- Your company works in project teams… with no place to huddle
- You are afraid to make changes because your industry is changing faster than you can predict
- Your large conference room is rarely used
- Your teams want to be sustainable, but you are not quite there
- You want to refresh your space, but you don’t have time for construction.
Architectural walls create spaces that you need for today and tomorrow. The open transparent space attracts high achievers, while the huddle rooms offer privacy for meetings and phone conversations. Demountable wall options make it easy to reconfigure for future needs. Glass walls let light in and are a sustainable way to help meet LEED building parameters. Premanufactured walls are ready to install without the dirt, mess, and disruption of typical construction. Architectural walls can help you achieve the growth you have always dreamed of. Google, Amazon, and most industry leaders use architectural walls to attract and retain top talent and to prepare themselves for the constant rhythm of business change.
Bob Batley is the Vice President of Architectural Products at COFCO, a mid‐Atlantic regional commercial furniture and walls solution provider. With over 35 years of executive leadership in the hospitality, commercial construction, and work environment fields, Bob consults, speaks, and is a thought leader when it comes to the challenges of today’s fierce competitive work environments. Bob can be reached at BBatley@cofcogroup.com or follow him on LinkedIn, Twitter, and Instagram.
In light of COVID-19 and the evolving climate resulting therefrom, Commercial and Residential Landlords are being presented with difficult decisions necessitating quick response. Everyone agrees health and safety is the priority; however, both landlords and tenants are asking what their rights and obligations are as a result of this pandemic. We’ve heard the term force majeure used over the past week as it relates to enforcement of contracts, leaving both landlords and tenants wondering if COVID-19 is a force majeure event that reduces or even eliminates their respective rights and obligations under the lease.
Force majeure clauses are found primarily in non-residential leases and only occasionally in residential leases. Generally speaking, force majeure clauses excuse a party from certain contractual obligations when an unforeseen circumstance or event outside of their control makes performance impossible. Force majeure clauses attempt to provide the parties with certainty if/when an unforeseeable unknown event occurs. Many force majeure clauses specifically define the triggering events while others vaguely refer to unforeseeable events or are silent.
At present, there is uncertainty as to whether COVID-19 is an event if force majeure; however, actions taken by the state and local officials to shut down businesses and encourage or mandate shelter-at-home protocols arguably trigger the effect of typical force majeure clauses, especially if health-related disasters, like disease or pandemic, are called out specifically.
As a first step in determining if COVID-19 is a triggering event, the landlord and tenant must review the express terms of the lease to determine if a force majeure clause appears. Next, the parties must determine the scope and language of the clause — does it specifically include or exclude health-related events or is it silent on that issue? Of course, if there is no such clause at all, a different analysis must be made.
Assume a clause exists and would be triggered by the current pandemic. In its simplest form, the express terms of a force majeure clauses in residential and commercial leases will dictate the parties’ rights and obligations. Further depending upon the circumstances and the level of specificity of the meaning or definition of “force majeure” as used in an express clause within a lease, principles of equity may be invoked. Simply because a force majeure clause appears in the lease which seems applicable does not necessarily mean either party is excused from its lease obligations.
Courts may choose to exercise their equitable powers in determining whether this pandemic implicates a force majeure clause containing or impliedly containing an “act of God” clause which, once invoked, creates an impossibility of performance, a determination that performance is unreasonable, that the contract is voidable
The foregoing information was furnished to us by sources which we deem to be reliable, but no warranty or representation is made as to the accuracy thereof. Subject to correction of errors, due to frustration of purpose, etc. Courts focus on the foreseeability of the event and the connection between the event and the non-performance. An otherwise-defaulting party will have difficulty invoking the force majeure to excuse its contractual obligations. In short, with respect to COVID-19, an interpretation of a force majeure clause must be made to determine whether the party seeking to be excused is simply attempting to use the force majeure to get out of a contract that party no longer wishes to perform.
For leases without force majeure clauses, common law doctrines of impossibility, impracticability and/or frustration of purpose may still apply to excuse contractual obligations. Simple economic struggle will not be a triggering event; however, economic struggle resulting from unforeseeable events may be sufficient.
On March 18, 2020, the Pennsylvania Supreme Court ordered a temporary moratorium on residential nonpayment evictions in the Commonwealth until April 3, 2020. The Order specifies this moratorium was enacted because of the economic impact COVID-19 is having on residents. At present, neither the Court’s Order nor the Landlord-Tenant Act excuses tenants from their rental obligations; however, it is more than likely that this Order will be updated and revised as the pandemic spreads.
Although the Order does not provide for any current rental abatement, if a Landlord is unable to provide tenants with the full intended benefit of the Lease, the monthly Rent should be appropriately adjusted. Congress is also considering relief for the housing providers in addition to renter assistance. Housing providers are experiencing the same health, safety and economic concerns as renters, such as an inability to pay their mortgage, employee payroll and benefits, insurance premiums and tax obligations in the current environment. Congress has been asked to provide much needed relief to both landlords and tenants in the midst of this pandemic; therefore, subsequent updates on this topic are likely.
Force Majeure clauses are typically only enforced as expressly agreed by the parties, but the pandemic may continue to affect this general statement. Since the PA Supreme Court is already entering equitable orders related to residential nonpayment of rent evictions at the beginnings of the pandemic, it is safe to say the Order will be updated and further extended as the pandemic evolves, possibly even affirmatively ordering a rent holiday, partial or full abatement or deferrals.
Many Pennsylvania businesses have been ordered to cease operations as they are not classified as life sustaining; therefore, commercial landlords and tenants are faced with additional concerns. The current list of business deemed to be life-sustaining is listed here.
Commercial leases are controlled by contract law in Pennsylvania; consequently, the express terms of the lease will provide the primary source of guidance. While landlords should retain an open dialogue with tenants, they must also be careful to not promise accommodations they are not able or willing to provide.
We expect landlords to be empathetic during this pandemic, but we do not believe landlords have a unilateral obligation to “foot the bill” for these problems they did not create. Further, if landlords and tenants have any verbal communications regarding rent accommodations, landlords and their agents must be extremely careful to specify that the parties will not be bound by the negotiations and will only be bound when a subsequent agreement is reduced to written form and signed by all parties. Force majeure clauses may be applicable to COVID-19 because of the governmental and court orders forcing closure beyond the control of the landlord or tenant; therefore, landlords must carefully comply with any notice or other procedural requirements set forth in the applicable lease.
Tenants will likely attempt to use a force majeure clause, assuming one to exist in the lease, or seek equitable relief, to excuse their rental obligations; however, most commercial leases preclude the use of force majeure clauses to abate rent and/or terminate the lease even if the tenant is unable to access the leased premises and operate. The terms of each lease and the local jurisdiction’s administrative Orders will affect this. Moreover, if the tenant does not actually vacate the leased premises, Courts will also have to take into account whether it is equitable on either a short-term or long-term basis for the landlord to continue to provide shelter and to incur costs without any compensation, notwithstanding the current prohibition on residential evictions for non-payment.
Mandated closures, like those resulting from Governor Wolf’s recent Order, may require landlords to shut their facilities, which prevents tenants from accessing their premises, making performance impossible whether or not there is a force majeure clause. In cases where the lease does not expressly include a force majeure clause, the concept of impossibility of performance may further provide some protection to landlords as well as tenants.
Force majeure clauses in most commercial leases preclude commercial tenants from withholding rent following an “act of god.” It is inevitable that a commercial tenant will seek rental abatement/deferrals/rent holiday if it is unable to occupy and operate. While the applicable lease may not require the landlord to engage in negotiations, it may be in the commercial landlord’s best interest to get creative and provide short-term relief to struggling tenants rather than suffer the alternative of losing tenants for the long-term and incurring substantial litigation expenses attempting to enforce the lease as written to compel occupancy and/or collect rent. Creative options for negotiations include but are not limited to, temporary rent reductions, payment of percentage rent only (if a retail store remains open; note, however, that the retail stores which do remain open are often grocery stores, which one would expect will be doing substantial business and should not have a problem paying rent), CAM-only monthly payments, application of security deposit to unpaid rent, rent deferrals, temporary rent forgiveness, lengthening the lease term by a time equivalent to the rent deferral period or requiring personal guarantees of future rent payment.
Because nearly everything about COVID-19 remains uncertain and consistently evolving, neither landlords nor tenant should make an assumption that COVID-19 will be declared an event of force majeure. It is of the utmost importance for landlords and tenant to comply with any and all force majeure provisions in the lease, including but not limited to the notice provisions, which may be critical to protecting their respective rights once this pandemic ends. Understanding the rights and obligations of your lease is key to long-term success.
Further, all commercial landlords need to consult their insurance advisors and review the specific terms of their policies, including but not limited to business interruption insurance and rent loss insurance as implicated by this pandemic. Landlords should also recommend that each tenant consult with its insurers regarding the same. Certain states are considering passing legislation expressly prohibiting insurers from denying claims relating to the pandemic, but that hasn’t occurred yet.
We urge all landlords, both nonresidential and residential, to assure that there is a pandemic plan and potentially engage counsel to review all leases for the following purposes: creating an addendum applicable to all tenants in the event of default; review of all force majeure clauses and updating them to include diseases, epidemics, and/or quarantines; review any other applicable contracts with tenants, residents, and suppliers to ensure they understand their rights in the instance of a force majeure.
Many landlords are current experiencing vacant retail centers, malls and buildings. One may think your job gets easier because there are few (or no) tenants in your building, but nothing could be further from the truth. In fact, even if your building is completely vacant for now, there is still plenty of work that needs to be done.
Please make sure that your team considers the following:
• Make sure your HVAC system is running properly.
• It’s ok to reduce regular thermostat settings (perhaps 55 degrees for heating and 80 degrees for cooling), but don’t turn off completely – just don’t turn them off completely!
• Make sure your outside air and exhaust fans are running to keep the air circulating.
• Make sure someone if putting water in the “p-traps” – particularly in sinks and floor drains – to keep sewer gases from backing up into the space.
• Make sure someone from your team is walking every inch of the building every workday.
• He/she should be looking for potential issues – like leaks, unsecured doors, equipment left running, etc.
• Make sure exterior doors and, where operable, exterior windows are locked.
• Work with your tenants to shut off equipment that is not in use. Remember that equipment (like a copier) is still drawing power even when it is in the power-saving mode.
• Water that is sitting still in the plumbing system will develop biofilms – which can cause disease (including Legionella, pseudomonas, and mycobacterium).
• Make sure someone is running the water through the system every day.
• Consider working with an industrial hygienist to test the potable water before letting tenants back into the building. The very last thing you want – after going through COVID19 – is to have an outbreak of Legionella when the tenants return!
• Consider posting a sign with your contact information on exterior doors in case someone needs access to the building.
• If the building is truly vacant, consider posting security guards on-site to deter vandalism and theft. Or, consider installing remote access cameras so you can keep an eye on common areas and the exterior.
• Make sure the roof access is secured – to keep people from accessing the roof and from accessing the building from the roof.
• Consider closing the miniblinds – or at least putting them down and angling them to minimize solar gain (which will reduce energy consumption).
• Review your insurance policy and notify your insurance provider. Even if the closure is only temporary, there might be insurance requirements to consider.
• Make sure building systems (pumps, motors, elevators, etc.) are exercised/run on a schedule. When these pieces of equipment sit idle, they can degrade quickly.
We suggest that you and your teams, colleagues and tenants sign up to receive up-to-the-minute text alerts from the city communications system by texting the word COVIDPHL to 888-777.
Finally, the CDC (Center for Disease Control & Prevention) has provided advice and guidelines for Landlords in the pandemic, specifically that Landlords keep Tenants informed on best practices.
If you have any questions, please contact Kierstin Lange at firstname.lastname@example.org from Zarwin Baum Devito Kaplan Schaer & Toddy PC.
On Wednesday, March 25, 2020—after days of debate—Congress agreed to a $2 trillion economic relief package designed to provide financial assistance to Americans and their families, and billions of dollars in loans for businesses. Voting is expected midday. The package is the largest fiscal stimulus in modern U.S. history and is the government’s most recent response to coronavirus disease 2019 (COVID-19).
What is included in the stimulus package?
While the final bill has yet to be released, there have been some publicly debated points. The economic rescue package includes a plan to provide two waves of direct financial assistance to Americans, a plan to stabilize the airline industry, a plan to provide small businesses with funds and a plan to issue loan guarantees to other hard-hit sectors in the economy. The package also includes provisions to extend unemployment insurance, increase funding for Medicaid and add additional assistance for small businesses throughout the country.
“This is not a moment of celebration, but one of necessity.”
Sen. Chuck Schumer
Direct Financial Assistance to Americans
The stimulus package would provide two waves of direct payments to all Americans, coming weeks apart. American adults making up to $75,000 would receive $1,200 each and $500 per child. Married couples earning up to $150,000 would receive $2,400. Adults making more than $75,000 but less than $99,000 would receive less, and adults making more than $99,000 would not receive any government financial assistance.
Stabilizing the Economy
The economic relief package proposal includes the following funds to stabilize various sectors of the economy:
- Airline industry: $50 billion
- Small businesses lending program: $350 billion
- Hospitals: $130 billion
- State and local governments: $150 billion
The economic relief package has been agreed to by Congress, but not yet passed. We will continue to monitor the situation for developments and provide updates.
Let’s look at how cost segregation can increase cash flow for commercial properties. Have you recently built, purchased, expanded or renovated a commercial property? If so, there may be significant untapped tax savings in the property or facilities. A cost segregation study can unlock those savings through greater tax deductions, accelerated depreciation and increased cash flow. Here’s how it works: Portions of a new or existing building are reclassified as “personal property” or “land improvement.” This cost classification can be depreciated over a shorter five, seven or 15 year period as opposed to the standard 39-year depreciable life of a commercial building.
What if you built, renovated, expanded or purchased a building in prior years? Cost segregation is still an option. The IRS allows taxpayers to change prior accounting methods to take advantage of these previously understated depreciation deductions. This can be done without amending tax returns and can generate a relatively large tax deduction in the year of change.
TAX REFORM MAKES COST SEGREGATION MORE VALUABLE THAN EVER
The tax benefits of cost segregation are even greater thanks to tax reform’s enhancement of bonus depreciation.
In general, bonus depreciation is applicable to depreciable business assets with a recovery period of 20 years
or less. Tax reform doubled bonus depreciation from 50 to 100 percent for qualifying property with acquisition
and in-service dates between September 27, 2017 and December 31, 2022. This means that 100 percent of
qualifying costs would be fully depreciated and recognized in year one and only the remaining building cost
would depreciate going forward over 39 years. After 2022, the bonus rate decreases by 20 percent annually,
so the time to act is now.
REAL RESULTS FOR REAL PROPERTIES
RKL performs over 80 studies every year for companies in a variety of industries, including rental real estate, office buildings, hotels/motels, golf courses, auto dealerships, manufacturing facilities, warehouses and more.
Here are two recent examples to demonstrate cost segregation can increase cash flow.
• Construction of a new hotel facility in 2018: Of the total project cost of $13.5 million, RKL identified $5 million as personal property and land improvements. This cost segregation combined with enhanced 100 percent bonus depreciation a present value of the tax savings of $958,000 (using a 37 percent federal tax rate and six percent discount rate), with projected additional depreciation deductions of $4 million for a tax savings of $1.5 million.
• Turn-key construction of a new medical office in 2017: Of the total project cost of $2.4 million, RKL identified $1 million as personal property and land improvements. This cost segregation combined with enhanced 50 percent bonus depreciation produced a present tax savings of $200,400 (using a 42.67 blended tax rate and six percent discount rate), with projected additional depreciation deductions of $695,000 over the next seven years. This will produce tax savings of $296,500 over that seven-year period with $233,200 in the first year alone.
• 2018 look-back study for a previously purchased office/distribution warehouse facility: RKL identified $326,200 of the original $1.375 million building cost as personal property and land improvements. This resulted in a one-time additional depreciation deduction in the current year’s tax return of $170,700. To obtain an analysis of potential cost segregation tax savings, contact RKL today.
FOR MORE INFORMATION CONTACT:
It’s 2020! Let’s take a quick look at some recent tax law changes affecting commercial real estate tax deduction restrictions. Below please find some insight into recent tax changes affecting commercial real estate tax deductions.
Here are some items that come to mind:
(1) The Tax Cuts and Jobs Act enables investment real estate owners to still defer capital gains taxes using section 1031 like-kind exchanges. There were no new restrictions on 1031 exchanges of real property made in the law. However, the new law repeals 1031 exchanges for all other types of property that are not real property. This means like-kind exchanges of personal property will no longer be allowed after 2017 for collectibles, franchise rights, heavy equipment and machinery, collectibles, rental vehicles, trucks, etc. The rules apply to real property not generally held for resale (such as lots held by a developer).
(2) The capital gain tax rates stayed the same so a real estate owner selling an investment property can potentially owe up to four different taxes: (1) Deprecation recapture at 25% (2) federal capital gain taxed at either 20% or 15% depending on taxable income (3) 3.8% net investment income tax (“NIIT”) when applicable and (4) the applicable state and local tax rate.
(3) The tax law creates a new tax deduction of 20% for pass-through businesses. This gets tricky but here goes. For tax years 2018-2025, an individual generally may deduct 20% of qualified business income from a partnership, S corporation, or sole proprietorship. The 20% deduction is not allowed in computing Adjusted Gross Income (AGI), but is allowed as a deduction reducing taxable income.
Restrictions on Tax Deductions
(1) Mostly, the deduction cannot exceed 50% of your share of the W-2 wages paid by the business. The limitation
can be computed as 25% of your share of the W-2 wages paid by the business, plus 2.5% of the unadjusted basis
(the original purchase price) of property used in the production of income.
(2) The W-2 limitations do not apply if you earn less than $157,500 (if single; $315,000 if married filing jointly).
(3) Certain personal service businesses are not eligible for the deduction, unless their taxable income is less than
$157,500 for singles and $315,000 if married. A “specified service trade or business” means any trade or business involving the performance of services in the fields of health, law, consulting, athletics, financial services, brokerage services, or any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees or owners, or which involves the performance of services that consist of investing and investment management trading, or dealing in securities, partnership interests, or commodities. (It appears President Trump liked real estate people but did not like professionals like lawyers, doctors, accountants and other consultants).
(4) The exception to the W-2 limit and the general disallowance of the deduction to personal service businesses is phased out over a range of $50,000 of income for single taxpayers and $100,000 for married taxpayers filing
jointly. By the time income for a single taxpayer reaches $207,500 or $415,000 for a married-filing-jointly
taxpayer, the W-2 limitation will apply in full (i.e. personal service professionals get no deduction).
(5) The new tax law increased the maximum amount a taxpayer may expense under Section. 179 to $1,000,000 and increased the phaseout threshold to $2,500,000. Interestingly, the new law also expanded the definition of Section. 179 properties to include certain depreciable tangible personal property used predominantly to furnish lodging. It also expanded the definition of qualified real property eligible for Section 179 expensing to include the following improvements to nonresidential real property: roofs; heating, ventilation, and air-conditioning property; fire protection and alarm systems; and security systems
(6) State and local taxes paid regarding carrying on a trade or business, or in an activity related to the production of income, continue to remain deductible. A rental property owner can deduct property taxes associated with a business asset, such as any rental properties. Don’t confuse such with the itemized deduction for your personal residence or vacation home which is now limited.
(7) While the prior law generally allows a deduction for business interest expenses, the new tax act limits that deduction to the business interest income plus 30% of adjusted taxable income. However, taxpayers (other than tax shelters) with average annual gross receipts for the prior three years of $25 million or less are exempt from this limitation. Real estate businesses can elect out of the business interest deduction limitation, but at the cost of longer depreciation recovery periods—30 years for residential real property and 40 years for nonresidential real property. If a real estate business does not elect out of the interest deduction limitation, then residential and nonresidential real property depreciation recovery periods are maintained at 27.5 years and 39 years, respectively.
Phew-there you have taste of what we’re going or at least as we see general changes directly or even indirectly
affecting real estate peeps. As you can see, the new law will bring a lot of changes (both good and bad) to individual and business taxpayers. On the plus side, this means more planning opportunities for many although looking for answers can be problematic as we all try to navigate through uncertain territory. These comments only touch the surface of one of the biggest tax overhauls in the nation’s history. Stay tuned and do stay close to your tax attorney and accountant.….
Let’s look at remedies for purchase agreement breaches and sale agreement breaches. What happens when a commercial contract buyer fails to purchase the property as required by the purchase and sale agreement (PSA) or otherwise commits a material breach?
Seller Remedies for Buyer’s Agreement Breaches
Here are specific remedy provisions to consider in the PSA, other than all “rights and remedies available at law or in equity”:
1. Liquidated Damages. The typical seller remedy for buyer agreement breaches is retention of the deposit monies posted at the time of signing the PSA. This is another reason for both seller and buyer to carefully consider the amount of the deposit when finalizing the agreement of sale, as this is not just an expression of buyer’s financial capability, but also the amount the buyer may forfeit to seller if it fails to close, after any contingency periods have expired. In NJ, liquidated damages provisions or stipulated damages provisions will be enforced so long as they are a reasonable estimate of the actual damages and not an impermissible penalty. Where the agreed upon amount is unconscionable, a court may refuse to enforce this remedy.
2. Specific Performance. An atypical remedy for a breach agreement breaches in favor of a seller is a court ordering that the purchaser buy the subject property. It is rare that a court will find that money damages are an inadequate remedy or that there are other equitable considerations, and therefore, the buyer must purchase the property.
3. Preserve Indemnity Obligations. While the liquidated damages provision is likely the exclusive remedy, a seller may also carve-out the buyer’s continuing obligation to indemnify seller for any damage caused by buyer or its representative in connection with buyer’s examination of the property. Given that the buyer entity may be a ne wly formed (and empty) special purpose entity (SPE), seller should confirm that buyer and its representatives have insurance in place to protect seller for personal and property damage. And, if the agreement of sale is assigned to a new SPE, seller should ensure that the original purchaser remains liable under the PSA.
4. Delivery of Due Diligence Materials. If buyer breaches the PSA resulting in termination, seller may demand delivery of buyer’s due diligence materials, including items like its title commitment, survey, environmental, property condition and zoning reports and any approvals, at no cost to seller. Buyer will want to be reimbursed the actual cost for these materials. A distinction should be drawn between delivery of the materials following a buyer breach versus following a termination under the due diligence contingency. An argument may be made that following a breach, seller should not have to reimburse the buyer for these costs.
A quick note about time being of the essence. While most South Jersey contracts contain a provision making time “of the essence” thereby setting a specific time frame for establishing a breach, many North Jersey PSAs do not. Where time is not made “of the essence” in the agreement of sale, a party can declare it to be so by delivering a written notice to the defaulting party after the date set for closing has passed. Following the failure to close, a written notice may be delivered demanding a new closing date, provided that it is reasonable in relation to the time that has passed. It should be no shorter than 10 days following the notice. The party ready, willing and able to close, will send this notice to the other to clarify whether there is a breach situation. Additionally, a party may declare time to be of the essence prior to the closing date where the other party has anticipatorily repudiated or breached the PSA. Notices and opportunities to cure may be included in the agreement of sale prior to a particular remedy being available.
Buyer Remedies for Seller’s Agreement Breaches
Sellers are guilty of breaching PSAs too. There are two general categories of seller agreement breaches: failure to close and breach of representations. For failure to close, the two most customary remedies are:
1. Termination, Return of Deposit and Compensation. If the seller does not complete closing, which sometimes happens when it is unable to deliver good title or when it changes its mind — perhaps due to a better offer — buyer is entitled to terminate the PSA and receive a refund of its deposit. Where this right is buyer’s only remedy, and savvy sellers are effective at making it so, the seller essentially has an option contract. If seller elects to breach (eg. to sell the property for a higher pric e or to take the property off the market), buyer may be limited to a termination right and the return of its deposit. In that scenario, buyer is stuck footing the bill for all of its diligence costs, attorneys’ fees and lender costs and expense. Therefore, buyers should seek to be reimbursed for these actual, out of pocket expenses (sometimes capped at a reasonable amount), in addition to the return of the deposit.
2. Specific Performance. If seller fails to close, buyer may be entitled to enforce specific performance against seller, provided that buyer has complied with its PSA obligations and commences the action within a reasonable period of time following the breach, say 45 days. Unlike the seller remedy which is extremely rare, a court is more willing to agree that the property is unique, and therefore buyer cannot be adequately compensated for seller’s breach with money alone. It is easier to convince a court to force the sale of the property to a buyer with “clean hands”, so buyer should make sure it has complied with its PSA obligations.
In anticipation of filing an action for specific performance, and perhaps as leverage in negotiating a settlement, the buyer may file a notice of lis pendens with the county recorder’s office indicating that it has a claim against title to the subject property. Doing so places the world on notice of the claim and essentially prevents sale of the property to another buyer or seller financing of the property. Some sellers will seek to prevent such filings by adding language which prohibits the filing of a lis pendens in the PSA. If specific performance is not available after being elected as a remedy, the PSA may state the buyer is able to recover all of its damages, without limitation.
For breach of a seller representation discovered post-closing the remedies may be based on parameters set for recovery in the PSA. The PSA may include language regarding: (i) a basket or deductible amount by which the damage must exceed for the claim to be actionable; (ii) a cap or maximum seller-liability amount; and (iii) a post-closing survival period for the representations and a period of time within which any claims must be made, which periods may be the same. Sellers will look to insert a high basket amount, a low cap on liability and a very short survival period. The dollar amounts will vary depending on the size of the transaction and the negotiating leverage of the parties. The survival period may vary significantly from PSA to PSA and may also vary within the PSA depending on the specific representation and its importance to the transaction. If the breach is discovered pre-closing and closing occurs, typically, no post-closing remedy will be available. Both buyer and seller should appreciate a prevailing party attorneys’ fees provision, like: “In the event either party employs an attorney in connection with claims by one party against the other arising from the operation of this PSA, the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, incurred in connection with this transaction and the collection of any judgment.” This can significantly increase costs for a breach.
At the time of PSA negotiation, the parties rarely believe that either side will actually breach their agreement. Nevertheless, sufficient time should be spent considering the “what ifs” should the transaction go south. The parties will want to be clear on the respective remedies so that they can move on quickly following a breach. Since the deposit going to seller will often be the remedy for a buyer’s failure to close, care should be given in determining the amount. If the deposit is disproportionately high compared to the monetary damages the seller will actually suffer in the event of a buyer breach, perhaps only a portion should be delivered to the seller with the balance being returned to buyer. Conversely, if the deposit is too low relative to seller’s anticipated damages, perhaps the seller should receive additional compensation. Remedy provisions should not be considered boilerplate. The parties to a PSA should consult with experienced counsel to understand the rights and remedies, and their many variations, following a breach. The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.
People don’t change for policies or procedures, and they don’t change because they read a brochure. Rather, people change for other people—for each other or for themselves. This key insight is now shaping successful change management efforts, a concerted push toward a more people-centric inclusive model of change—a democratization of what has previously been conceived as primarily a top-down process.
This is a welcome evolution. In the past, change management projects in workplaces may have had a tendency to put the needs of leadership above those of the occupants themselves. These efforts could essentially be boiled
down to, “Convince people that what we’re doing is a good idea.” But that is not really a change management effort—it is an advertising campaign. It treats as a foregone conclusion that people actually want and need the proposed transformation to happen, and that the plan as presented is already as good as it can get. Broadly speaking, neither of those things tend to be true.
Effective change management is neither solely top-down nor bottom-up. Everyone in an organization has a contribution to make in co-creating workplace transformation, even if that role is just to convince the person sitting next to them. Leaders help steer the ship. Individual team members can play a role in advocating for the kinds of change they want to see. Managers stand in the middle, and serve the interests of those both above and below, hopefully both accurately and positively.
BUILD TRUST THROUGH ENGAGEMENT
Even if a transformation such as a move to Activity-Based Working is likely to improve the experience of employees, they may still resist. The problem is not that employees are stodgy sticks-in-the-mud who are unwilling to change. The problem is psychology. Most people exhibit some degree of loss aversion bias; they are generally more worried about losing what they have than they are excited about getting something new that may be even better.
People do have some reason to be skeptical of change. After all, a years-long downward trend in job security and people-centric investments such as training and benefits has already eroded some of the trust that once existed between employers and employees. When commenters accidentally (or wryly) refer to a “war on talent”, they
may not be wrong. Establishing trust is a prerequisite.
The starting point of any change effort must be empathy; it is the responsibility of those advocating for change to work to understand the source of resistance and address it, if possible. People also may have what Robert Kegan and Lisa Lahey call competing commitments. Those who are resisting change usually have some good reason for doing so, even if their rationale remains hidden from view. As the team at Unwritten Labs often points out, the culture of an organization is full of unwritten rules and codes of behavior, and violating those expectations can cause people to get upset. Simply arguing more forcefully will not make them suddenly decide to go along with the plan. They may, in fact, dig in.
For example, think of a tech-enabled flexible work environment—perhaps even an unassigned environment using something like hot–desking. Before adopting this way of working, an occupant of a traditional desk can only think about what they’re giving up: a place of their own with their name on it. Attached to this furniture may be their sense of privacy or feelings of status within the organization. When someone tries to take it away, their very identity can feel threatened. On the other hand, with the current setup, they have learned to ignore the fact that they might have a filing cabinet on either side of them, or that they cannot see a window, or that they are surrounded by cube dividers that are only a few feet wider than their elbows.
Reminding people of the many ways they have adapted to a non-optimal situation helps to create what change management expert John Kotter calls the “burning platform”—it motivates those who are reticent to make the leap. This is necessary because people differ in the propensity to accept change. An adjustment that seems insignificant to one person may be upsetting or even alienating to someone else. Though it’s often invoked in discussion of technology adoption, Roger’s diffusion of innovations curve applies to workplace change as well. A relatively small number of early adopters will naturally be interested in trying something new, but the majority will wait until they can clearly see the benefits of doing so.
PRACTICE PARTICIPATORY DESIGN
Things often go wrong at the very beginning of change a project—perhaps even before what most people would consider to be the beginning—with unvalidated assumptions about what people want. Success requires that one start by asking the simple questions that are too often given short shrift: Is this actually good for our people? Would they also think so? Has anyone asked what they think?
For an example from outside the world of workplace, look to a recent story from Boston. To save money and reduce travel time for public school students, administrators enlisted experts from MIT to design an algorithm that would optimize the routes of school buses. They incorporated a huge set of parameters, even accounting for the need of
teenagers to get more sleep and start school later. Though it succeeded in lowering projected costs and would have made life easier for the kids, the solution was ultimately rejected by the community.
What went wrong? The team’s solution was, by many measures, a brilliant one. The critical misstep was that they did not have buy-in from some of the people who would be most impacted: parents. The good news is that they caught this oversight before actually implementing the plan, and have a chance to incorporate that constraint going forward.
START SMART, GET EVEN BETTER
In most cases of change, the optimal solution is probably an option that isn’t visible from the starting point. The way to find it is to get into a collaborative exchange, and to take feedback from stakeholders seriously. While leaders may think or even say that they are already doing this, many employees feel otherwise. A recent survey from Quantum Workforce found that almost a third of employees don’t even know why changes are happening; their ability to engage with the change is therefore fairly limited. Whether or not a project is adjusting in response to feedback is one of the clearest ways to see if a change management effort is actually helping people. If the plan doesn’t evolve at least a little during implementation, it’s likely that it isn’t so much managing change as demanding it.
A pilot program can make all the difference, giving people an opportunity to practice the new way of doing this before they are expected to embrace it. This is not the same as a model or mockup. A drawing is better than nothing at all, but actually spending time in a space is essential. As people try the new environment, researchers can gather data under conditions that are fairly close to the proposed future state. There’s no reason that the pilot needs to be limited to one idea, either.
Whether through providing multiple protoypes in a portion of the company’s existing space or by harnessing the flexibility of coworking, piloting provides people with an opportunity to try out different work settings before they commit.
There are a couple of big caveats when it comes to piloting. It is critical that people be given the freedom to explore the new environment independently and by choice—otherwise it’s just another obligation. It is also important that a researcher is either physically present to observe or is otherwise actively soliciting feedback. Tram members often have trouble articulating what they do or do not like about a new environment.
EMPOWER CHANGE LEADERS
When contemplating a major workplace shift, organizations often suffer from a breakdown in productive communication. Leaders may hesitate to share plans with staff before the idea is fully baked. People on the front lines might have concerns or feedback, but lack an established forum in which to voice them. Managers may feel pulled toward either toeing the leadership line or speaking up in solidarity with their reports. The result is that people often end up feeling confused or anxious and filling the information gaps with rumors or speculation. Much of this can be mitigated with the right approach.
One of the most important things leaders can do is to practice transparency from the beginning of a change project. Even if there are still many unknowns, it is important to communicate clearly using all of the organization’s communication channels; newsletters, meetings, webinars, and informal conversations all can and should be leveraged.
Employees at every level should be educated in both the business case for the change and on how it will affect them personally. Once they know what the plan is, people usually have something to say about it. Embrace this feedback from day one. In our 12-point guide to change management effort, we highlight the need to create change leaders within an organization. Savvy managers can usually spot these people and help make them part of what Kotter calls a “guiding coalition”.
Whether or not they are empowered by the formal hierarchy, there are employees who would like to actively participate in shaping the change. Make sure they have a seat at the table. This group can support the change in two important ways. The first is that they show others how to make the change successfully. The second is that they provide constructive criticism that will challenge and ultimately improve the proposal.
In order for this to work, people need leadership support and some grounding in the basics of workplace transformation. We developed materials to support a train-the-trainer approach to change management efforts in our work with the U.S. General Services Administration (GSA), the agency that manages the federal government’s real estate portfolio. This was a unique project, since the GSA is involved in some capacity with the change efforts of many other agencies throughout the federal government, one of the largest and most complex organizations in the world. It would be impractical to design a change program that accommodated the needs of so many unique stakeholders. Instead, we worked with architect Marble Fairbanks and the agency leadership to package this information in an easily distributable form, with the goal of democratizing the change process. By identifying key roadblocks common to many change efforts, as well as peoplecentric ways to address each one, the project aimed to empower change makers at every level of the agency.
CHANGE IS ABOUT PEOPLE
We often define an organization’s culture as the sum of all of its people, their values, and moment-by-moment actions taken on those values. The way the organization practices change management is included in that definition. A well conducted change effort offers an opportunity to act out some of the parts of culture that are often preached but less often practiced—things like transparency, collaboration, honesty, and empathy. The key to a successful change process to engage with people as often and as genuinely as possible. They must be given an opportunity to have a real impact on what is going to happen to them and, when possible, to take a leadership role in the transformation. Practitioners who take the time to do this right will be rewarded when their team emerges more resilient, capable, and trusting than they were at the beginning.
FOR MORE INFORMATION:
PLASTARC is a social science-based workplace consultancy. Blending qualitative and quantitative research with design expertise, PLASTARC is dedicated to shifting the metrics associated with workplace from “square feet and inches” to “occupant satisfaction and performance.” Through a holistic approach that incorporates workplace anthropology, analytics, and change management advisory, they recommend evidence-based interventions that make the built environment more people-centric and responsive, promoting both individual wellness and business success.
Melissa Marsh, Founder & Executive Director
Tenant bankruptcies are creating headaches for landlords. RadioShack. Brookstone. Toys R’ Us. Sears. With fifteen major retail bankruptcies filed last year in 2018, the toppled retail behemoth has almost become a cliché, and brands once courted by commercial landlords have become major sources of risk. With no sign of a slow-down, this article provides a refresher on your rights, as a commercial landlord, in commercial tenant bankruptcies.
Commercial Tenant Bankruptcies 101: THE BASICS
• Ipso facto clauses in a lease, which trigger default or acceleration upon the filing of a bankruptcy case, are generally unenforceable under the Bankruptcy Code. Thus, you cannot terminate a lease or stop performing your obligations under the lease on account of the bankruptcy filing.
• The filing of a bankruptcy case triggers the automatic stay, which requires all actions to enforce the lease, evict the tenant or collect a debt (including unpaid rent) to cease. Unless you have a judgment to possess the subject premises, or the lease has otherwise expired by its terms, you must not continue to pursue collection or enforcement activities.
• A commercial debtor may assume a lease and assign it to a third party, in most circumstances without your consent, even if the lease requires the consent of the landlord to assignment.
• A commercial debtor may reject a lease based on its business judgment, and you have very few (virtually no) grounds on which to object to a lease rejection.
Commercial Tenant Bankruptcies 201: WHEN WILL I GET PAID AND HOW MUCH?
The Bankruptcy Code requires bankrupt tenants to continue paying rent under the lease during the pendency of the case (post-petition rent). If a debtor does not assume a lease within 210 days of the commencement of the bankruptcy case, the lease is deemed rejected.
Depending on whether the lease is assumed or rejected and the financial health of the bankruptcy estate, rent that was unpaid as of the date of the filing (pre-petition rent) may be paid in full, in part or not at all. Tenants under assumed leases must cure all breaches under the lease, including to pay in full all unpaid pre-petition and post-petition rent and any damages incurred as a result of the breach of the lease. The cure amounts must be paid at the time the lease is assumed by the debtor or its assignee.
Landlords under rejected leases, on the other hand, are entitled to a claim against the bankruptcy estate, which, depending on the financial health of the debtor, may be paid in full, in part or not at all. While unpaid postpetition rent constitutes an administrative (or dollar-for-dollar) claim against the estate, all other pre petition rent and damages caused by the rejection of the lease constitute unsecured (often, cents-on-the-dollar) claims, and will be paid pro rata with other unsecured creditors. Further, while rejection damages include the amount of rent remaining in the life of its lease, damages are statutorily capped at the greater of one year of rent or the rent for 15% of the remaining term of the lease, not to exceed three (3) years. Landlords who successfully mitigate their damages and re-let the premises may not be entitled to any claim if the rent received under the new lease is greater than or equal to the rent under the existing lease. Payments on unsecured claims are typically paid, if at all, after the debtor has confirmed a plan of reorganization.
Commercial Tenant Bankruptcies 301: DO I HAVE TO ACCEPT A RENT REDUCTION?
Bankruptcy affords the debtor tenant a unique opportunity to re-negotiate its leases. On one hand, the Bankruptcy Code prohibits the debtor from cherry picking which provisions of a lease it wants to assume and which provisions it would like to reject; instead, the Code requires the debtor to assume or reject the lease in its entirety. On the other hand, many debtor tenants leverage the specter of potential rejection to obtain significant rent concessions from landlords. Rent reduction negotiations often begin in the pre-bankruptcy period and continue in the early days of the case, with landlords being told that failure to negotiate will result in certain rejection.
You do not have to negotiate with the debtor tenant or accept a rent reduction, though doing so may increase the possibility of the assumption of your lease. Debtor tenants are more likely to reject leases:
• Not essential to the continued operation of the business,
• With above-market rent,
• In areas saturated with other debtor locations, or
• With low-performing stores.
If your lease falls outside of these categories, then the debtor may assume the lease even without obtaining a rent (or other) concession.
Commercial Tenant Bankruptcies THE BIG PICTURE
As soon as a tenant shows signs of financial weakness, consider actively pursuing remedies under the lease, including termination or eviction proceedings. If the lease has expired or you have already obtained a judgment for possession when your tenant has filed for bankruptcy, tear up this article! (after confirming with your attorney that the lease is, in fact, properly terminated).
If the lease has not expired or terminated at the time of filing, be sure to engage bankruptcy counsel to review the proceedings and protect your interests in the case. Bankruptcy counsel will object to any insufficient cure amount, file a proof of claim for your damages and review any plan of reorganization to advise you of your
anticipated recoveries. Even though retail bankruptcies have become commonplace, sound counsel will ensure
that your rights are protected and help you get paid.
Finally, engage competent real estate professionals, who can provide an accurate assessment of current market
rent and assist in finding a replacement tenant to satisfy and requirement that you mitigate your damages
after rejection/termination of the lease.
The contents of this article are for informational purposes only and none of these materials is offered, nor should be construed, as legal advice or a legal opinion based on any specific facts or circumstances.