Where are the Green Lease forms?

A growing number of cities are passing ordinances which require green or sustainable building practices.  Cities such as San Francisco have passed comprehensive standards new-build and renovation projects must meet, while Atlanta and Miami are in the early stages for such requirements.

But what if your city doesn’t pass these kinds of ordinances? Are green building practices and incentives going to matter? Despite the current economic climate, developers, economists and industry-leaders are in agreement that green leases will be a part of the new commercial and residential developing market. “In today’s ‘red’ economy, some may argue that green real estate is just a passing fad. However, all signs indicate just the opposite—that green is the future standard in the real estate industry.” (Diana M. Ducharme, “Green Leasing in a Red Economy,” Hinckley Allen Snyder, LLP Client Update, December 2009). The green building market, including residential and commercial projects, is expected to more than double from today’s $36-$49 billion to $96-$140 billion by the year 2013 (U.S. Green Building Council, “Green Building By the Numbers,” April 2009).

Even though new commercial construction starts are at a record low, some developers are seeing an increase in their sales due to their widespread marketing and publicity of their green-built projects. For example, Dockside Green, a new 1.3 million square foot commercial, industrial and residential development in Victoria, British Columbia has actually seen an increase in sales with the promotion of the ‘green-ness’ its units. Developer Joe Van Belleghem said, “What we’ve tried to train our people [to do] is really make sure the customer knows what they’re getting. Because if you’re saving a lot of energy and water and sewage and you start to look over time how much that will save you over a 20-year period, it’s phenomenal how much dollars you’re saving.” (“Dockside Green defies market slump,” Times Colonist, November 2009 – article no longer available).

Due to an influx in available commercial and residential space, perhaps there is even more of a need for building green and then heavily promoting the sustainability of properties, as well as providing incentives in green leases for both landlords and tenants. “Now, [the landlord controlled commercial real estate lease negotiation] relationship is inverted with landlords wooing prospective and existing tenants like never before. With landlords worried about a shortage of creditworthy tenants, and tenants worried about deteriorating economic fundamentals . . . mutual commitment to a green office environment may be [an opportunity to create a balanced win-win-relationship]” (Barry LePatner, “Green leases add value for landlords and tenants,” Real Estate Weekly, July 22, 2009). By providing a green space and a green lease and marketing it as such, developers and commercial real estate owners could have the opportunity to put a little more ‘green’ in their pockets. “On the bright side for owners, it’s a great opportunity for improved performance and repositioning of a building. Re-branding is hard to do, and this is a great way to do it. You can buy an older building, retrofit it and make it a LEED EB building.” (Matt Hudgins, “Green Leases: A Matter for Debate,” National Real Estate Investor Online, May 5, 2008, quoting Mark Pillsbury).

There is no industry standard definition of what constitutes a green lease. Simply, a green lease should “ensure that both landlords and tenants reach mutually agreed upon objectives regarding sustainability.” (Susan Coleman, “Negotiating Commercial Leases: How Owners & Corporate Occupants Can Avoid Costly Errors,” PLI Order No. 18155, May 18-19, 2009).

It seems obvious that there cannot be a “one size fits all” model for green leases. Green leases must differ based on the types of space being used, whether the space is new or existing, the location of the building, the amount of space a tenant will occupy, how many tenants will occupy the building, and what kind of green technology is being utilized in the building. (Ronald B. Grais and Kristen M. Boike, “Jenner & Block: Green Leasing—The Changing Environment of Leasing,” Emerging Issues Commentary, June 2008).
In addition to the complexity of drafting based on the green-centric specifics of each lease, there are several additional problems which result from altering a typical commercial real estate lease structure. Though most tenants and landlords understand the benefits to constructing and occupying buildings which were designed with sustainability in mind, there are incentive problems. For example, a standard gross lease doesn’t offer tenants incentives to act in a green manner. “In a gross lease, it is the owner’s incentive to take action to reduce the carbon footprint for the building and preserve resources, because any savings which flow from those decisions will benefit the owner and not the tenants, whose monthly rent usually goes up each year.” (Jeffrey Swenarton, “Get ready—green leases are coming,” Business Review, December 10, 2009). According to Karen Penafield, vice president of advocacy for the Building Owners and Managers Association (BOMA), “You can upgrade all your systems and achieve a lot of energy efficiency that way, but if the tenants use more and more energy, you’re not really doing anything on the conservation side.” (Kevin Borgia, “A model lease agreement,” Sustainable Industries, December 4, 2007).

Landlords who improve on energy efficiency in their buildings may not be able to recapture the costs of green building from tenants. “Landlords have little incentive to improve the building’s energy performance since the tenant pays its own utility bills.” (Barry LePatner, “Green leases add value for landlords and tenants,” Real Estate Weekly, July 22, 2009). A net lease, on the other hand, would require that a tenant would pay its own utility bills, and therefore, give it the incentives to act in a green manner.

Due to the need to revolutionize current lease structures in order to incentivize behaviors on both the landlord and tenant sides, law firms, business organizations, and other companies are starting to create green lease sample forms. Organizations like BOMA and Square Footage are selling their versions of green leases which they claim account for landlord and tenant cost and benefits in a green building.  CB Richard Ellis assists clients with adding green standards to traditional leases, instead of drafting an entirely new environmentally friendly lease. “That can be included in the lease as an exhibit just as you would include an exhibit for how a building will be cleaned every night.” (Matt Hudgins, “Green Leases: A Matter for Debate,” National Real Estate Investor Online, May 5, 2008). Looking forward, law firms and their clients will need to come up with solutions to site-specific lease negotiations, perhaps incorporating ideas from model lease ideas.

Dale A. Burket (dale.burket@lowndes-law.com) is a Florida attorney who is Board Certified in Real Estate by The Florida Bar.   He is a partner with Lowndes Drosdick Doster Kantor & Reed, P.A. (www.lowndes-law.com) in Orlando, Florida.  The author gratefully acknowledges the contributions of associate attorney Laura M. Walda (laura.walda@lowndes-law.com) to this article.

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Dale Burket is a partner in the Real Estate Transactions, Development and Finance Commercial Leasing, and Environmental Law practices. With over 29 years of experience, Dale focuses his real estate legal practice on multi-site, multi-jurisdictional real estate acquisitions, dispositions, leasing and financing and large, multi-site and multi-state real estate transactions. His hospitality practice concentrates on restaurant leases and financing arrangements. Dale has also represented Real Estate Investment Trusts (REITs) in connections with mergers, securitizations, purchase of income producing properties, and sales of properties by taxable REIT subsidiaries. Dale is Board Certified in Real Estate Law by the Florida Bar Board of Legal Specialization and Education. He has represented local, regional, and national clients in commercial real estate transactions, including CNL Financial Group, Inc., JDS Holdings, LLC., and Northland, A Church Distributed Inc. Dale has also handled purchase and sale transactions in excess of $100 Million, handled real estate aspects of a corporate merger involving more than 2,000 properties, and closed senior credit facilities on behalf of the borrower in excess of $50 Million.

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