When a company enters into a long-term lease agreement, there’s a certain amount of risk involved. What if your company outgrows the space you’ve leased? What if business interests shift and your company needs to relocate to a more market-friendly area? Or, worse yet, what if the company folds entirely?
Rather than paying a termination fee, which can sometimes involve a significant portion of the remaining rent obligation plus forfeiture of the security deposit, some lease agreements allow for subleasing of a commercial real estate space to offset costs and avoid penalty charges.
If your situation involves any of the above criteria, it might be time to strongly consider subleasing your office space to another company. Here’s how – and why – you should sublease your office space.
Why You Should Sublease Your Office Space
There are several reasons for businesses to sublease an office space, but most have to do with financial implications. Breaking an existing lease is a costly endeavor and can lead to legal troubles most companies would seek to avoid, so subleasing a space to a responsible suitor is often the best option. That way, a business can avoid paying termination penalties and sacrificing the costs of a security deposit, passing along these costs to a third-party. However, subleasing means taking responsibility for a subtenant and doesn’t preclude your company from being ultimately responsible for the full monthly amount due to the landlord.
Here are some common reasons companies choose to sublease:
More Space Than You Can Afford (or Use)
While it’s important to consider potential growth when entering into a commercial real estate lease, it’s also possible that your company could wind up paying for space that it doesn’t ultimately need at the time. Until that period of growth comes, it’s beneficial to consider subleasing parts of your office space in order to pay for lost overhead. Even on paper, it makes more sense to recoup your investment on unused office space rather than letting it sit empty..
The Need for Larger (or More Suitable) Space
This is the most ideal situation in which to sublet office space. If your company grows beyond its bounds and things are starting to feel cramped, it’s time to expand and move into a larger property. But breaking lease agreements can be expensive and complicated, making it more attractive for tenants to seek a subtenant to offset termination costs and provide financial flexibility when seeking a larger space.
Your Company Downsizes or Folds
Unfortunately, business realities can take hold, forcing your hand in order to offset costs when a company goes under. But if you have a provision in your lease agreement that allows subletting, you can help pay creditors with the monthly rent payments provided by a subtenant should your business fail.
Pros and Cons of Subletting an Office Space
- You’ll Offset Costs of Unused Office Space
The most common reason why companies sublet office space is to make the best financial sense of unused or otherwise unneeded space. After all, it’s a net loss to pay for square footage that your company simply isn’t using.
- Flexibility in Finding Larger or More Suitable Space
If you decide your existing space isn’t suitable for the need or size of your business, subletting your old space in exchange for a larger and more efficient property allows you the flexibility in financing an expansion without breaking the terms of your existing lease agreement.
- Lease Terms May Restrict Your Flexibility
Depending on the terms of your lease agreement, you may only be able to lease a specific part of the building, space, or section of your office with the landlord’s approval. Ideally, a tenant would be able to sublease the entirety of the space they occupy, but that’s not always the case. Commercial rental codes, landlord preferences, and market conditions can throw a wrench in your subletting plans. Furthermore, certain lease agreements can prohibit you from subletting to companies or entities that have lower credit scores than yours, restricting you from subletting to a wide array of potential suitors.
- Hidden Costs Can Bite You
As the original tenant, it’s ultimately your responsibility for damages to the property and any repairs needed at the end of the lease agreement. Furthermore, even if you recoup the security deposit, any further damages to the property will be on your dime, making you liable for any actions by the subtenant.
Depending on the nature of your lease agreement, you may be on the hook for any overages in utility costs incurred by the subtenant. Most lease agreements dictate specific limits in utility costs provided by the landlord; anything outside of those costs could show a stiff bill at the end of the lease agreement – and that’s on you.
How to Sublet an Office Space
Step 1: Check the Terms of Your Lease Agreement
Before you start looking for subtenants, you want to make sure you’re legally capable of subleasing the space you’re currently occupying. Most commercial lease agreements prohibit subleases outright, but those that allow subleasing require approval from the landlord before ink sets to paper.
This is also the first opportunity in which you should get your attorney involved in the process, as they’ll have better insight into your ability to sublease a space per the terms of your lease agreement.
Step 2: Search for Subtenants
Depending on the market, you’ll almost always be able to find a company looking to capitalize on a reduced lease, reduced rate sublet – but your best options might be right around the corner. Your neighbors in the building may be looking for a better option, a larger space, or an expansion opportunity, and because they’re already tenants to the same landlord, all parties might have an easier time getting what they want.
Next, your subtenants should be carefully screened and vetted before an agreement is made. Because your subtenant will be paying rent to you and not to the landlord, you’ll still be liable for the total amount of the monthly lease – no matter who’s actually paying the bill. That’s why it’s crucial that you do your due diligence in finding subtenants who are able to pay the full amount and are able to maintain the property as per the terms of your original lease agreement. In other words, it’s on you if the subtenant damages or neglects the property while subleasing from you.
Step 3: Agree on Reasonable Terms and Determine What to Charge
If your subtenant is in the same (or similar) industry as yours, you may have an easier time transitioning the property to their specifications. But if extensive renovations or upgrades are required, you’ll want to spell out who bears the costs of those improvements and who will be responsible for any stipulations in the original lease agreement should the landlord require you to restore the property to its initial condition. These can include utility costs, amenities, branding or signage, furnishings, and specialty upgrades.
Furthermore, determining costs and breakdowns of utility contributions is essential at the outset of a sublease agreement. While market conditions may suit your company favorably when considering a sublet, some lease agreements prohibit original tenants the ability to charge more than the original monthly rent amount in order to make a profit on the space itself. However, it’s common for tenants to require subtenants to pay the full amount of the original security deposit in order to protect themselves from damages incurred, which should mitigate potential risk.
Step 4: Finalize the Sublease
Once you’ve covered all your bases and consulted with both your landlord and your real estate attorney, it’s time to sign the agreement and finalize plans for your company to relocate and bring in a subtenant under your original lease agreement.
The Difference Between Sublets and Assignments
Subletting and assignments are two very different practices in commercial real estate, although they’re often confused.
Subletting involves the original tenant retaining the responsibility for the lease agreement with the landlord despite two or more parties being financially responsible for the monthly rent. Landlords tend to prefer these types of agreements due to that factor.
Assignments are more attractive to tenants, but riskier for landlords. With sublets, the responsibility for monthly payments remains with the original tenant, making them ultimately responsible for the subtenant’s contributions. With an assignment, the landlord must evaluate a new tenant, who must demonstrate financial stability and reliability in addition to the original tenant. However, assignments provide the landlord the ability to deal with only one tenant at a time, simplifying their oversight of the property and freeing them up to negotiate a new lease once the original agreement is complete.
With assignments and sublets, landlords and original tenants must consider several factors, including:
- -Financial stability of potential new tenants
- -Any changes in the terms of the lease agreement
- -How much obligation the original tenant holds
- -Costs of monthly rent and any overages to be paid to the landlord on behalf of the original tenant or subtenant
As with any legal agreement, any commercial lease agreement that prohibits subletting or assignment should stop any negotiations in its tracks. Ideally (at least in the eyes of the tenant), a lease agreement should specifically define the tenant’s ability to sublet or assign a commercial space and also define the landlord’s ability to refuse such an arrangement – and why.
Landlords often define the terms of a potential sublet or assignment using the following criteria:
- -Retaining approval of proposed use of the leased space
- -Legal and financial analysis of any fees incurred during the subtenant review period
- -Business and industry review to verify potential conflicts of interest with other tenants
As long as your lease agreement allows for subletting extra – or the entirety – of your space, the decision lies between you, your landlord, and the subtenant. It’s a difficult process to filter out the appropriate subtenant, but a worthy time investment given the financial benefits to all parties. You save money on space you no longer need, the subtenant finds a suitable environment for near or below market value, and the landlord keeps collecting the monthly payment. But ensuring the situation is right for everyone is ultimately the responsibility of the original tenant, so be sure to do your homework before committing to any sublet agreement.