Chapter 6
6.28
There may be variations on all these types of percentage leases. Trade organizations such as the
International Council of Shopping Centers and Urban Land Institute publish studies on typical percentage
rental rates associated with different types of retail businesses to assist parties in negotiating these
agreements. Retailers with low margins, such as food chain stores, tend to pay low percentage rents, in the
order of 1% to 1.5%, while fashion retailers, with much higher margins, may pay up to 5% to 7% of gross
sales.
3
A percentage lease will likely have detailed provisions which set out the definition of gross sales. For
example, gross sales will exclude HST, but include credit sales, sales made at other store locations, credit
card discounts, mail orders, trade-ins, gift certificates, and inter-store transactions. A generally acceptable
definition of gross sales is “the gross amount of all sales made in, from, or at the leased premises, whether
for cash or on credit, after deducting the sales price of any returned merchandise where a cash refund is
given.”
Percentage leases are much more difficult to handle than those with precise terms because the portion of rent
payable is dependent on gross sales. A number of economic and management factors will impact annual
gross sales. To determine whether the trend in percentage sales is upward, down, or stable it’s necessary to
examine several years of financials and understand the combined impact of local, regional, and global
influences on the tenant’s ability to succeed. For example, a change in store management, new competition
and changes in the attitudes of the buying public will affect sales. A combination of retail experience,
judgement and analysis is required by the analyst to arrive at a reasonable amount of percentage rent for the
capitalization process and an appropriate risk based discount rate.
The income generated through percentage rent certainly adds to the landlord’s bottom line, but the guarantee
that it will be maintained does not generally exist. Financial institutions and lenders will recognize the
existence of percentage rental income, but look to the minimum rents as the basis for lending. It is accepted
generally that the risk rate associated with the capitalization of percentage rental income may be higher than
the rate for guaranteed rent. However, this will vary upon the strength of the tenant and the length of time
percentage rent has actually been paid. If a consistent level of percentage rent has been maintained over a
number of years, there may be less risk with such a cash flow. Furthermore, landlords may negotiate a
higher minimum rent upon turnover as a way of rolling percentage rent into a more secure income stream.
The clauses which cover the payment of percentage rent must be carefully read to see how the rent is to be
paid, i.e., annually, or monthly. In some cases where the lease provides for a long term made up of two, ten
year terms, the lease may provide for an increase in the minimum rent based upon a combination of
minimum rent and percentage rent. A sample clause is as follows:
“Option to Renew”: The Tenant has the option to renew this lease for a further ten (10) years. There
shall be no right to further renewal after the first renewal. The terms and conditions
of this renewal remain the same as the terms and conditions of the Lease in effect,
save and except for the minimum rent. The annual minimum rent will be adjusted
at the commencement of year one (l) of the renewal term as well as at the
commencement of year six (6) of the renewal term to the average rent (minimum
plus percentage rent) paid over the previous two (2) years of the term.
The minimum rent according to this clause can result in a rate that is considerably in excess of market. A
more dangerous situation for the lessee can be created if the gross sales during the last two years of the
initial term or the first renewal period are high but then fall dramatically. The minimum rent could be
excessive and depending upon the strength of the tenant, might force the lessee out of business. For
example:
3
Alexander, A. & Muhlebach, R, Managing and Leasing Commercial Properties, Institute of Real Estate Management, 2007, p.68.