Avoiding the 'CAP Trap'

The NRTA advises retailers on how to avoid traps that increase occupancy costs

With cutting costs top-of-mind for every retail chain trying to make ends meet in a lingering downturn, the National Retail Tenants Association (NRTA) is using its influence and expertise to address the occupancy side of the retail expense equation.

According to the NRTA, if your retail real estate leases are capped, you may easily fall into the “CAP trap” that can be increasing your occupancy costs. In other words, the fact that your leases are capped may lead your lease auditor to believe you don’t have to worry about them. However, says the NRTA, often the opposite is true.

NRTA member Rick Burke has studied this issue extensively, and will be presenting his review at NRTA’s Annual conference later this year in Anaheim, Calif.  Burke, who is president of Lease Administration Solutions, LLC, cautions that leases that have NTE (Not to Exceed) Caps may in fact need more review to determine if a landlord has accurately billed the tenant.

“An NTE Cap should never be confused with a fixed amount or fixed percentage increase,” said Burke. “The NTE Cap can be a source of overcharges to the tenant rather than the protection from an overcharge, which it was initially designed to be.”

This type of cap can come in many different variations depending on how the lease is negotiated. It may be calculated on the base year, or on the prior year.  It can be tied to a percentage or an external derivative such as a Consumer Price Index or Porters Wage. The cap may begin on the first year, or in future years.  The increase may be cumulative and/or compounded.

“It is important for a lease administrator to read the lease carefully to avoid applying the cap in an incorrect manner,” advised Burke. In fact, he said that there are several scenarios in which a tenant may be at risk of overcharges from them. These include:

  • Stated first year with a year-over-year percentage increase;
  • Controllable vs. non-controllable expenses; and
  • Cumulative and compounded caps.

To learn the specifics of the above examples, and how they can translate into significant overcharges, attend Burke’s session on the subject at the annual NRTA conference in Anaheim, Calif., Sept. 26-29. For more information about attending the conference, visit retailtenants.org.