AMTdirect has been an active member of the NRTA (National Retail Tenants Association) for sometime now, and in my opinion, it has always been one of the better organizations out there. There are numerous benefits of becoming a member of the NRTA, but one of my favorite benefits is the ability to access their message board.
Message Boards and User Forums provide industry experts with an online bulletin-board community that is responsible for uniting industry professionals in order to share thoughts, ideas, and provide technical assistance. The NRTA message board is a great online resource for industry professionals to obtain advice from fellow professionals.
For example, one of last month’s NRTA posts dealt with removing prior year’s CAM charges when a new management company is in place. Listed below is the question posted by a lease management professional on the message board along with fellow industry professionals’ responses.
NRTA’s Message Board Question of the Month:
While reconciling 2005 and 2006 CAM charges against our Lease, I discovered my company was being charged for expenses that are not our obligation under the Lease. The management company for the Landlord agreed with my assessment, is crediting my company $10,000 to reimburse for the charges, is adjusting the monthly payment down going forward, and removing these charges from future reconciliations.
Looking deeper into the file, I discovered that we have paid these charges dating back to 2002, when our Lease began. Is there a statute of limitations in this situation? Is the current management company obligated to credit erroneous charges assessed by another company prior to their contract? Management companies I have dealt with in the past reason that they are only responsible for that which happens under their guard. I appreciate any insights on the matter.
1) I have had this happen multiple times and have always been successful at getting it back. There have been a couple of times where we only got half back after negotiations. You have to look at whether or not it was just the property management company that changed or the ownership (and along with that, the new PM). If the ownership changed, was an estoppel given? Always try, because it doesn’t hurt to ask. Good Luck.
2) If I understand this correctly your issue is with the previous landlord, not with either a current or previous management company. It would seem inappropriate to expect the current landlord to reimburse overpayments made to the previous landlord, unless you could document that the funds representing the overpayments transferred ownership to the purchaser through the purchase and sale agreement.
3) This is an interesting question that is frequently posed at NRTA conferences. Not suprisingly, it touches on a number of topics and issues. The first is the role of the management company, which is strictly an agent of the Landlord. Therefore, their “objection” that the overcharge occured on someone else’s watch is legally irrelevant. Assuming that the landlord hasn’t changed over the years, then the issue becomes one of lease language — was there a limitaiton of the time to object or audit? - and applicable law, ie: the statute of limitations. Given that the statute of limitations for contract (ie: lease actions) is usually at least four years - and your time to bring a claim commences only when you recieve the final reconciliation, it is likely that this would not foreclose your claim. You may also be foreclosed from pursuing this by what are called “equitable” defenses, that is, that you failed to object to these charges over the years and are now prohibited from doing so. Having said all this (and warning you that you can only get legal adivse from your counsel), I would politely but firmly inform the management company that regardless of who was representing the landlord in the past, you are still entitled to recovery (if, indeed you are), and that you hope that they will pursue the matter in your behalf, or you will do so directly.
This is just a small preview of what the NRTA message forum has to offer and I encourage you to visit their website to learn more about their organization.
Other organizations/associations include:
International Council of Shopping Centers (ICSC) – www.icsc.org
Corenet – www.corenetglobal.org
National Retail Federation – www.nrf.com
Realcomm – www.realcomm.com
Boma – www.boma.org