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Build to Suit Leases – Ultimate Guide

August 16, 2019

Build to suit (BTS) is a solution for businesses who want to occupy purpose-built property without owning it. In this article, we’ll define a build to suit lease and explore the provisions of a build to suit agreement. Also, we’ll cover the new build to suit accounting rules adopted in 2016. Then, we’ll review BTS pros and cons, and recommend how to arrange financing. Finally, we’ll conclude by answering frequently asked questions about BTS.

What Does Build to Suit Mean?

Build to suit is an arrangement in which a landlord constructs a building for a sole tenant. Importantly, the resulting free-standing building meets the specific requirements of the tenant. Typically, businesses of all sizes arrange BTS real estate agreements to efficiently acquire and control custom facilities. In fact, many industrial and retail properties are BTS, although any type of CRE is possible.

How Does a Build to Suit Lease Work?

A build to suit lease is a long-term commitment between a landlord and a tenant.

Initiation of a BTS Real Estate Project

The BTS process can begin in a few of ways:

  • A prospective tenant can seek out a landlord to construct a building according to the tenant’s specifications. Thereafter, the tenant enters into a long-term lease with the landlord.
  • A landowner might advertise land that it will build out to support a BTS lease. An interested company can contact the landowner to arrange a build to suit lease agreement.
  • In a reverse BTS, the prospective tenant constructs the building. Typically, the landlord finances the project, but the tenant runs the project. Then, the tenant takes occupancy of the building as a lessee to the property owner. Normally, reverse BTS makes sense when the tenant has specific construction expertise in the kind of facility it desires.

Typically, the landlord owns the land or has a ground lease on it. Upon lease expiration, the build to suit agreement allows the landlord to re-let the property to a different tenant.

Components of a Build to Suit Lease Arrangement

Essentially, a BTS arrangement consists of two components:

  1. Development Agreement: The developer agrees to construct or acquire and redevelop a building on behalf of the tenant. The agreement results from the tenant issuing a request for proposal (RFP) to one or more developers. The development agreement defines the relationship between the landlord and the tenant. That is, the agreement specifies the design of the property, who will build it and who will finance it. Typically, the tenant will take sole occupancy of the property, but sometimes other tenants will share the building. The construction component is the chief and most complex issue in a BTS agreement.
  2. Lease Agreement: The BTS lease specifies the terms of occupancy once the developer completes construction. Sometimes, the lease itself will specify the construction provisions directly or through an accompanying work letter.

BTS Participant Roles

A build to suit lease is a major undertaking for the landlord and tenant. Clearly, they will be dealing with each other over an extended period. Therefore, the BTS arrangement must carefully consider each participant’s responsibilities:

  • Landlord: The landlord must assess the tenant’s creditworthiness. Also, it must understand the needs of the tenant as a guide to design and construction. Frequently, the landlord requires a guarantee and cash security from the tenant. The landlord must specify whether it or the tenant will lead the construction project. Furthermore, the landlord will want a long-enough lease term so that it can recoup its investment.
  • Tenant: The tenant develops the RFP. It must evaluate whether the landlord has the technical expertise and financial resources to deliver on time. The evaluation will include the landlord’s prior BTS real estate experience, reputation and structure. The tenant must decide whether it wants to direct the construction of the building or leave it to the landlord. It may also require guarantees and/or a letter of credit to assure the funding of the construction component.

Both parties will want to provide input regarding the selection of architects, engineers and contractors.

BTS Request for Proposal

The tenant creates the RFP and distributes it to one or more developers. Typically, the RFP will address:

  • The uses of the property.
  • The space required.
  • A calendar timeline for construction and occupancy.
  • The rent range that the tenant will accept.
  • Design parameters and details.

Usually, the tenant distributes the RFP to multiple property owners/developers. It becomes more complicated if the tenant wants a specific site for the building. In that case, the landowner may be the sole recipient of the RFP. Naturally, the landowner has more influence if the tenant wants to build on the owner’s land.

What is Build-to-Suit Financing

Negotiating the Deal

Once the tenant selects the winning RFP respondent, serious negotiations can begin. Normally, the process involves submissions from the landlord’s architects that specify the design plans. In return, the tenant’s space planners and consultants review the plan and negotiate changes. A natural tension is inevitable. On the one hand, the tenant wants a space perfectly suited to its needs. On the other hand, the landlord needs to balance the tenant’s needs with the availability of project financing. The landlord must also consider how easily it can re-let the property once the initial lease expires.

Eventually, the build to suit lease agreement emerges from the negotiation process. It specifies as much detail as possible about the building construction, the duties of each party, and the lease terms. For example, the agreement may require the landlord to construct a building shell that the tenant completes. Alternatively, the landlord may have to fit out a turn-key property in move-in condition. If the landlord delivers only a shell, the agreement should specify how the two teams interface at turnover time. The tenant can avoid this issue by agreeing to use the landlord’s developer for the finishing phase.

Timetable and Deliverables

Of course, the build to suit agreement must specify a project timetable and turn-over date. The agreement will state delivery details and the move-in date. The expiration of the tenant’s existing lease may create the need for a set move-in date. Therefore, the parties must work backwards from the required move-in date to set the timetable and milestones. Typical milestones include securing the financing, breaking ground, pouring concrete for the foundation and erecting the structural steel.

Delays may be very costly. The tenant may reserve the right to abandon the deal if delays exceed a set date. For example, the landlord might find it difficult to finance the project, delaying its start. Other sources of delays include procuring permits, zone variances and inspections. Perhaps an unexpected disaster will make it impossible to acquire building materials when needed. Or a labor action by the construction crew might shut down the project. Moreover, environmental groups might file lawsuits that halt construction. Indeed, the opportunities for delay are immense, and the BTS agreement should address remedies up front. The agreement may specify penalties that will greatly spur on the developer. The tenant may find new ways to motivate the landlord.

Rent

The build to suit lease agreement will specify the tenant’s basic rental rate. The basic rate hinges on the land value, the cost of construction, and the landlord’s required rate of return. Sometimes, the agreement will allow adjustments to the rate if construction costs exceed expectations. The tenant might request change orders that add to the cost of construction and increase the final rent. If the tenant plays hardball on any rent increases, the project budget and scope should be extremely detailed.

The agreement should specify the change order process and the landlord’s right to approve. The landlord might resist any changes that add construction costs without a corresponding rent increase. Alternatively, the agreement may specify that the tenant pay for any approved change orders. The agreement should also relieve the landlord of penalties due to delays stemming from change orders.

Other Lease Considerations

Certain other issues require consideration when negotiating a BTS lease:

  1. Commencement Date vs Construction Date: The landlord may want the BTS lease to specify a commencement date for the tenant to start paying rent. However, the tenant may insist on delaying any rent payments until construction is complete.
  2. Right to Purchase: Some tenants may want the option to purchase the property during the lease period.       At the least, the tenant might want the right of first offer to a proposed sale. Moreover, the tenant might request the right to match any purchase bid. The landlord might agree to these tenant rights as long as it doesn’t reduce the best selling price.
  3. Space Migration: In some cases, the BTS property is part of a commercial park. The tenant might be concerned about expanding the amount of space it occupies later. Therefore, the agreement might include an option for a new construction phase.       Alternatively, if the tenant has too much space, the lease should address subletting the property.
  4. Warranties: The agreement should address the warrantied cost of construction defects and deficiencies. The lease should specify the warranty obligations for defective design, construction or materials.

Build to Suit Lease Accounting

The Financial Account Standards Board (FASB) recently issued new accounting standards for leases (Topic 842). The new standards cover BTS leases, which sometimes use sale-and-leaseback accounting. If the tenant (lessee) controls the asset during the construction phase before lease commencement, it is the asset owner. Upon completion of construction, the tenant sells the property to the landlord and leases it back. The lessee owns the property if any of the following are true:

  • The lessee has the right to buy the property during construction.
  • The lessor (landlord) has the right to collect payment for work performed and has no other use for the property.
  • Lessee owns either the land and property improvements, or the non-real-estate assets under construction.
  • The lessee controls the land and doesn’t lease it to the lessor or other party before construction begins.
  • Lessee lessee leases the land for a period that reflects substantial economic life of the property improvement. The lessee doesn’t sublease the land before construction begins and before reaping the property’s economic life.

Under these circumstances, the lessee is the asset’s deemed owner during construction. Therefore, it must account for construction-in-progress using ASC 360 – Property, Plant and Equipment. The rule requires the lessee assume responsibility for the construction costs via a deemed loan from the lessor. When construction ends, the lessee follows the sale and leaseback accounting rules.

On the other hand, if the lessee is not the deemed owner of the asset during construction, it does not apply sale and leaseback treatment. Instead, it treats payments it makes to use the asset as lease payments.

For detailed information about build to suit lease accounting, seek guidance from your accounting and legal advisors.

Pros and Cons of BTS Real Estate

The pros of build to suit leasing often outweigh the cons.

Pros of BTS Real Estate

  1. Capital: The tenant need not allocate the capital necessary to construct the property itself. The landlord gets to put its capital to work in return for long-term lease income.      
  2. Location: The tenant can choose its location rather than selecting from available stock. It can choose a location in a high-growth area with easy access. The landlord exploits the land it owns with no risk that a new property will sit vacant.
  3. Efficiency: The tenant specifies the building size so that it’s perfect for its needs.       Furthermore, it can demand high energy efficiency through modern equipment and technology. The landlord can use its involvement with a green project to burnish its reputation.
  4. Branding: The tenant might benefit from a building that reflects its personality and image.       The tenant can choose the architectural design, finishes and colors to magnify its image.
  5. Risk: The tenant might be able to walk away from the lease if the construction falls significantly behind. The landlord benefits from a locked-in long-term lease once construction is complete.
  6. Taxes: The tenant’s lease payments are fully deductible over the life of the lease.      

Cons of BTS Real Estate

  1. Commitment: The tenant incurs a long-term commitment that is not easy to exit before the term expires. Typical lease periods run 10 years or longer.
  2. Financing: Typically, the lessee needs to demonstrate it is sufficiently creditworthy to handle a long-term lease commitment.
  3. Cost: It’s cheaper for the tenant to find and lease vacant space. Many companies cannot afford to pay for build to suit real estate .
  4. Time: It takes longer to construct a building than to lease space from an existing one.

BTS Commercial Real Estate Financing

Assets America® will arrange financing for your BTS project starting at $5 million, with no upper limit. We invite you to contact us for more information for our complete financial services. We can help make your BTS project possible through our network of private investors and banks. For the best in BTS financing, Assets America® is the smart choice.

Video:  What is Build-to-Suit Financing?

Frequently Asked Questions – Build to Suit

What is a ground lease vs. build to suit?

In a ground lease, the tenant leases the underlying land rather than the property. In a build to suit lease agreement, the landlord owns the land and the tenant leases the building constructed on the land.

What does build to suit residential mean?

Almost always, build to suit refers to commercial properties. However, it is possible to enter into a build to suit agreement for a multifamily house. Then, the tenant subleases the units to subtenants.

What is a reverse build to suit?

A reverse build to suit is when the tenant oversees the construction of the property. Reverse BTS is useful when the tenant has special expertise constructing the type of property involved. Typically, the landlord finances the reverse BTS deal.

Is a build-to-suit lease agreement right for me?

It might make sense for landlords who have vacant land they want to develop. The BTS agreement reduces the risk of developing the land since the lease is locked-in. Tenants preserve capital through a BTS lease agreement.

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