RESOURCES

Introduction: Finding the perfect location for your business is an exciting milestone. However, the joy can quickly fade when faced with a dense and complex commercial lease agreement. For many business owners, the temptation is to sign quickly to secure the space, but hidden clauses and unfavourable terms can lead to significant financial and operational headaches down the line. At HKM Associates Advocates, we believe that an informed tenant is a protected tenant. This guide will walk you through the critical areas of a commercial lease you must review before putting pen to paper.

Beyond the Rent: Understanding the Total Cost The monthly rent is just one piece of the financial puzzle. A thorough lease review focuses on the total occupancy cost. Pay close attention to:

• Operating Expenses (CAM Charges): These are costs for maintaining the property, such as security, cleaning, landscaping, and repairs. Ensure the lease clearly defines what is included and how these costs are calculated and apportioned among tenants.
• Utilities and Taxes: Clarify who is responsible for paying property taxes, electricity, water, and other utility bills.
• Rent Escalation Clauses: Leases often include clauses that allow the landlord to increase the rent annually. Understand the mechanism for this increase—whether it’s a fixed percentage or tied to an inflation index—to budget effectively for the future.

Negotiating Key Clauses for Your Protection A commercial lease is a negotiable contract. Do not assume the terms are final. Here are a few key clauses where negotiation is crucial:

• Use Clause: This clause defines how you can use the premises. Ensure it is broad enough to accommodate your current business activities and any future expansion or change in services you might undertake.
• Assignment and Subletting: Life is unpredictable. You may need to move, sell your business, or downsize. An assignment and subletting clause gives you the flexibility to lease the space to another tenant. Negotiate for the right to assign or sublet with the landlord’s reasonable consent, which cannot be unreasonably withheld.
• Indemnity and Liability: Scrutinize clauses related to liability. You want to ensure you are not held responsible for damages or issues caused by the building’s structure or the landlord’s negligence.

Term, Renewal, and Exit Strategy Finally, have a clear plan for the beginning and end of your tenancy.

• Lease Term: Does the length of the lease align with your business goals? A shorter term with renewal options may offer more flexibility for a growing business.
• Renewal Options: Secure your right to renew the lease at the end of the term. The clause should specify the timeframe for providing notice and how the new rent will be determined.
• Repairs and Decorations: Clearly outline who is responsible for what. Typically, tenants are responsible for internal repairs and decorations, while landlords handle structural and external issues. Get this in writing to avoid future disputes.

Conclusion: A commercial lease is one of the most significant financial commitments your business will make. While it may seem daunting, a careful and strategic review can protect you from unfavourable terms and provide the stability your business needs to thrive.

Call to Action: Before you sign your next commercial lease, let the experts at HKM Associates Advocates conduct a comprehensive review. Our experienced real estate lawyers will identify potential risks, negotiate key terms on your behalf, and ensure your interests are safeguarded. Contact us today for a consultation.

About HKM Associates Advocates HKM Associates is a premier law firm specializing in Corporate Law, Commercial Litigation, and Real Estate. Our team of dedicated advocates provides strategic, effective, and client-centered legal solutions to businesses and individuals across Kenya. We are committed to being your trusted partners in legal success.