Recapture clauses: A guide for commercial landlords

Being a commercial landlord can be hugely profitable, but it’s definitely not without its challenges. You have to understand exactly how to protect your interests and maximize your property’s potential for income.

One crucial element of your profession worth understanding is the value of a recapture clause in your leases. A recapture clause is a provision commonly included in many commercial lease agreements. It provides landlords with the option to terminate an existing lease prematurely and retake (or “recapture”) possession of the leased property under certain conditions. This gives you the opportunity to seek out a new (potentially more lucrative) tenant of your choosing.

How does a recapture clause work?

A recapture clause typically comes into play when specific pre-defined conditions, known as triggering events, occur. The specific triggering events that activate a recapture clause may vary depending on the terms negotiated between the landlord and the tenant. However, some common examples of triggering events include:

• Substantial breaches of the lease’s terms: If the tenant violates significant terms of the lease agreement, such as non-payment of rent, unauthorized alterations to the property, or illegal activities conducted on the premises, that may trigger the clause.
• Changes in the tenant’s business: A recapture clause may be triggered if the tenant alters the nature of their business in a way that conflicts with the original purpose of the lease or violates zoning regulations.
• Early termination requests or assignment requests: It’s not unusual for a recapture clause to kick in when a tenant wants to assign or sublet their lease to another tenant. This helps landlords avoid dealing with tenants they do not want.
• Sale of the property: Landlords sometimes can activate a recapture clause to terminate the existing lease and facilitate the property’s sale to a buyer who prefers an unoccupied space.
• Poor performance by the tenant: If there’s a percentage lease that gives the landlord a share of a tenant’s revenue, falling below a certain amount of sales for a certain length of time may be a trigger event.

By incorporating a well-drafted recapture clause into your lease agreements, you can look after your interests, maintain your property values and explore new opportunities that match your long-term objectives. Seeking experienced legal guidance can help you draft lease agreements that are fair to your tenants while still protecting your bottom line.