The New Year is here and if you are an office tenant your escalation invoice is probably on the way soon. According to the lease, most office tenants are responsible to pay their proportionate share of increases in Real Estate Taxes and Operating Expenses above the Base Year (usually the first calendar year of the lease term). This seems all well and good. The invoice, when it arrives, looks like an official document, so most tenants simply prefer to pay it and move on. After all, who really understands this stuff anyway?

If you want to be safe and decide to send the bill to your lawyer, he will confirm that the lease obligates you to pay escalation, and will then probably send you a bill for his time to confirm this. If you send the bill to your accountant, he will probably tell you that he is in the middle of tax season, and really does not have the time to look at this now, but maybe after April 15th he can review the invoice for you—and then he too will probably send you a bill for his time.

So, how does the average tenant know whether the bill is legitimate and should be paid?

Escalation, like anything else, is not overly complicated if you know the right questions to ask. To begin with, you should request that your landlord provide a breakdown of the operating expenses by category for the Base Year and the current Lease Year in question. If you don’t have these breakdowns, I suggest that you send a written request to your Landlord. For those of you who may not be familiar with a WRITTEN REQUEST, this is where one types and then prints the request on a piece of paper and mails it in the form of a letter to the Landlord via the United States Post Office. While text and email may be the currently preferred media of our millennials and beyond, I am suggesting that snail mail in this instance is actually superior when communicating with the Landlord.

Once you receive these breakdowns, compare the amounts in each category for the Lease Year with amounts in the Base Year and then caculate the percentage of increase or decrease. In this way, you can see if there is a trend of the increases and note if there are any particular categories that stand out as an anomaly which might demand an explanation.

For example, if there is a large increase of more than 10 percent in any category, an explanation for the increase should be requested from the Landlord. Year to year, some categories like snow removal will vary depending on weather. Energy prices are down this year, so utility costs should be down. If you note a large one-time expense like a new HVAC system, you might question whether the increase should be amortized over the useful life of the equipment rather that included in your escalation bill as a one-time expense.

Your friendly Real Estate Advisor can be a good guide and resource when reviewing Escalation Invoices. Many of them will be happy to show you how to ask the right questions. For a more complete explanation of escalation, I suggest you refer to my book “The Complete Survival Guide To Negotiating An Office Space, Secrets Your Landlord Doesn’t Want You To Know”.

Wishing you a successful and profitable 2016.

Regards,
Lawrence Dickstein