What is a Ground Lease

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A lease of land only, on which the tenant usually constructs the building (usually required to build as specified in the lease) with their own funds and owns the building during the term of the lease. Such leases are usually long-term net leases; the tenant’s right and obligations continue until the lease expires or is terminated through default. In its most basic terms, a ground lease is a method for separating ownership of the improvements (building) from the ownership of the underlying fee (ground). If you own a ground lease, you own a fee simple interest in the ground (not the building). The owner cannot depreciate a ground lease because you don’t own the building, so you have nothing to depreciate.

The reason ground leases are desirable is because the tenant is only paying to rent the land and use their own funds for all of the improvements. If the tenant leaves, the owner of the land gets the improvements and since the rent is so low (because the tenant paid for all of the improvements and was only paying to rent the land) you should easily be able to increase your return on investment. So it could actually end up benefiting a buyer if the tenant exits. Ground leases trade at a lower CAP Rate because they are usually lower price points and below market rent.

A commercial ground lease is usually defined as a lease of land (typically the land is not improved), for a relatively long term (e.g., 25 to 99 years), where all expenses of the property are the obligation of the tenant (e.g., taxes, repair and maintenance expenses, insurance costs, and financing costs), and which allows for tenant financing for the construction of the project to be constructed on the land either by leasehold financing, and/or so called “fee subordination” financing. Ground leases, therefore, are not only leases in the traditional sense of the word but are also financing instruments.

There are two major advantages for a tenant entering into a ground lease, as opposed to purchasing the land.

A ground lease substantially reduces the tenant’s front-end development costs because it eliminates land acquisition costs.
All rent payments made under a ground lease are deductible by the tenant for federal and state income tax purposes.
Typically ground leases are long term and include set rent escalations, foreclosure rights should the lessee default, and a reversionary right, which means improvements on the property revert to the landowner at the end of the lease term. While such lease terms do not particularly favor developers, ground leases offer some distinct advantages.

Whichever is better depends on what the investing goals are for the property owner….both involve low maintenance, and low management; however, there are tax consequences which would effect the owner’s bottom line.

SUBORDINATED & UNSUBORDINATED GROUND LEASES

The term “subordinated ground lease” refers to a ground lease in which the landowner has agreed to permit a lien to be placed against the owner’s fee simple interest in the land to secure the payment of the loan made by the construction lender or a subsequent lender to the tenant. The lender has a lien against both the fee simple interest of the landowner and the leasehold estate of the tenant. If there is a default under the loan, the lender may foreclose against both the fee title and the leasehold estate, in which case the owner loses its land.

In an unsubordinated ground lease, no lien is placed against the fee simple title to the land. Instead, the leasehold estate is the primary security for the loan.

Reasons Why a Landowner Might Agree to Subordination

It is not typical in current arms length transactions for the owner to subordinate its fee interest, but there may be instances in which an owner is willing to do so. For example, an owner may be willing to subordinate its fee in order to enable the tenant to obtain financing to develop the property, particularly if the financing will permit enhanced development of the property or development of the property in a manner that will enhance the value of the owner’s adjacent or nearby property. Or, the owner may be willing to mortgage its fee interest in exchange for participating in the project’s profits.

About the Author

Dwaine L. Clarke is the Founder and President of GCT Net Lease. GCT Net Lease is an investment real estate services firm exclusively focusing on Single and Mult-Tenant Net Lease Properties. The firm provides a full range of brokerage and advisory services nationwide to High Net worth Investors, Developers, REITs and Institutional Investment Funds. GCT Net Lease is headquartered in Windsor Connecticut. Dwaine is also a nationally recognized speaker and consultant. He is also the author of three best selling commercial real estate investing books. Mr. Clarke’s experience branches through close to over a decade of working with and for some of the nation’s top investors to purchase, underwrite, develop and manage millions of dollars in commercial investment real estate. For his case, he has not only assisted these investors, but also became a student of theirs. Through careful analysis he started to understand what these investment experts were doing, using top strategies to buy, manage and sell their investment properties for maximum profit. He especially took note of how these investors were leveraging their time and how they made their decisions without interfering with their personal or business lives. Mr. Clarke is also active in investing and creating real estate partnerships, providing a vehicle for high net-worth individuals to own income producing real estate.

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