Business Information Series 2012 Vol. I No.3 SIGNING A COMMERCIAL LEASE. Dubai Business Guide. Markets

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1 Business Information Series 2012 Vol. I No.3 SIGNING A COMMERCIAL LEASE Dubai Business Guide Markets Business Support Department Dubai Chamber of Commerce and Industry

2 Published by: Dubai Chamber of Commerce and Industry Business Support Department P.O. Box 1457 Dubai, United Arab Emirates Tel: 800 CHAMBER ( ) Website: Dubai Business Advisor 2012 Dubai Chamber All rights reserved Disclaimer: Information in this guide is obtained from sources deemed reliable, but no warranty expressed or implied is made on any part of its contents. While a good faith effort has been made to ensure the accuracy, timeliness, and completeness of the contents of this guide, we do not guarantee the information contained herein. Laws, rules, regulations, and procedures may change significantly with short notice, and this guide may reflect details that, while accurate at the time the information was gathered, could be currently no longer in effect or otherwise modified. Nothing in this guide should be construed as legal, accounting, or other professional advice and we will not be held responsible for any changes, omissions or inaccuracies in the information contained herein. Interested parties are urged to seek the advice of competent, licensed professionals in the appropriate area of expertise for any further questions regarding their specific circumstances.

3 Table of Contents Introduction... 4 Contract provisions... 4 Types of Commercial Property Leasing in Dubai... 4 Negotiating a Lease... 5 Tenant Rights... 7 Tenancy Laws and Decrees... 7 New Regulatory Developments... 9 What to Look Out For When Signing a Lease Conclusion References... 12

4 Introduction Once an entrepreneur has chosen a business location, he or she will need to sign a lease with the landlord. The lease or tenancy contract is a very important document, as it dictates the terms of the arrangement between the landlord and tenant and lays out the rights and responsibilities of the two parties. Often, a lease refers to the two parties as the lessor the person who owns and wishes to offer use of the property and the lessee the person who wishes to rent and use the property. Contract provisions One key provision in a lease is the rent, including the amount to be paid and when the money is due. The contract will also specify the period of the lease, that is, for what dates the lease is valid. A lease should also contain a description of the premises, the specifics of the location to be rented. This is particularly important if the tenant is renting part of a building, as it describes which areas are covered by the lease. A lease often includes a provision for a security deposit and should specify the amount of this deposit if it is mentioned. A security deposit is paid by the tenant to the landlord at the beginning of the lease and can be used by the landlord for expenses that are the responsibility of the tenant such as cleaning, damage, or unpaid rent. If the landlord uses money from the security deposit for such expenses, they must be able to justify them and must provide notice that they are using funds from the security deposit for these purposes. The landlord must then refund the security deposit or what remains after justifiable expenses at the conclusion of the lease. Technically, if the landlord uses funds from the security deposit during the period of the lease for expenses, the tenant is required to replace those funds so the security deposit stays at its original amount. In practice however, the security deposit is often only applied for expenses at the conclusion of the lease. Types of Commercial Property Leasing in Dubai Commercial property leasing in Dubai requires a specific legal document that is equally beneficial for tenant and landlords. It is not just a simple process like residential leases. The four major types of commercial property leasing in Dubai are: Gross Lease Triple-Net-Lease Land Lease Modified Net Lease Gross Lease 4

5 It is a general lease which includes full services. The tenant has to pay a fixed amount as rent whereas the landlord pays other charges like property maintenance, tax and insurance charges. Mostly single and multi- story office buildings offer this kind of lease for tenants. Triple-Net-Lease The tenant under this lease pays a considerable amount of other asset related expenses like tax, maintenance charges and insurance along with property rent. Commonly tenants do not prefer such kind of a lease because it places extra burdens on the tenant. But it is very common practice in commercial property leasing and is very beneficial for landlords. The only drawback of this lease is that the rents are lower as compared to other lease types. Land Lease A land lease is issued for longer periods of time. A landlord would offer land on rent and the tenant is allowed to construct a building on it. And at the end of the lease, the owner gets the land and the building. Modified Net Lease This type of lease exists between the gross lease and triple net lease. It benefits both landlords and tenants since they both share all the property related charges like taxes, maintenance and insurance. Mostly industrial properties, retail or multi-tenant properties are leased this way. Negotiating a Lease Two important issues a tenant should consider carefully when negotiating the lease are the initial condition of the premises when the property is handed over at the beginning of the lease and the responsibility of ongoing maintenance of the property. Dubai law states that the landlord is required to hand over the property in good condition so that it is usable by the tenant. The landlord is generally liable for major maintenance and is required to fix problems that prevent the tenant s ability to use the property (although these two requirements of the landlord may not be valid if the lease states that the parties have agreed otherwise). A lease often contains language that requires the tenant to confirm that they have inspected the property and accept its current condition. The tenant will often agree to maintain the interior and exterior of the property and accept responsibility for minor maintenance. If there is any confusion between minor and major maintenance, and whose responsibility it will be, it is best to have this clarified precisely in writing before the lease is signed. 5

6 Additional costs Other common terms in a commercial lease include provisions requiring the tenant to pay any taxes, duties, or other fees related to the property over the term of the lease. The tenant may also be obliged to take out an insurance policy (for fire or other damages or risks) on the premises for the term of the lease. There are often terms in the lease to indemnify and hold blameless the landlord against any claims or liability resulting from any injury or other incidents that may take place on the premises during the lease. There may also be other provisions requiring the tenant to take responsibility for certain anticipated repairs or maintenance to the building. Renewal terms The terms of renewal for the lease are also important, especially if the tenant intends to use the premises for a period longer than that which is covered by the lease (this is often the case with an ongoing business). Dubai law states that if either party decides not to renew the lease contract, or if they wish to renegotiate its terms for renewal, they must inform the other party accordingly not less than 90 days before the expiry of the tenancy contract (again, this provision may not hold if the lease agreed by both parties states otherwise). The landlord is only entitled to terminate the lease and ask the tenant to leave the premises at the end of the lease under certain circumstances. Specifically, these conditions include situations where the building is to be torn down or undergo major renovation (either at the landlord s discretion or because it is mandated by the authorities), or if the landlord wishes to use the property for their private use or the use of a close relative. The landlord is only permitted to ask the tenant to leave the premises before expiry of the tenancy contract in an even more limited set of circumstances. This includes circumstances where the tenant is in serious violation of the lease or in violation of the law in regards to their use of the premises or if the property poses an imminent safety hazard. Once again, these conditions may not apply if the two parties have agreed otherwise. 6

7 Tenant Rights Dubai law did not allow increases in rents during 2009 for tenants who are renewing rental contracts signed in 2008 if the rent value was equal to, or not less than 25 per cent below the average rent of similar properties. If the rent was more than 25 per cent below the average rent of similar properties, certain increases are allowed, but in all circumstances, the maximum increase allowed is 20 per cent. More details can be found on the website of the Real Estate Regulatory Agency (www.rpdubai.ae), under the rent increase calculator issued by the Dubai Land Department. Not all areas are covered under this scheme, and interested readers are referred to the website for more details. UAE law states that if the landlord sells the property during the period of the lease, the new owner is required to honor the rights of the lessee under the tenancy contract. If the property is sold without the consent of the tenant, then the tenant s rights are unchanged after the sale. If, however, the sale takes place with the tenant s consent, then the tenant is required to hand over the property to the new owner. The tenant may stay, however, for the period covering any rent they have paid in advance, unless they are reimbursed for the period of rent they paid for but were unable to use the property. Tenancy Laws and Decrees Tenants and landlords should be aware of the tenancy laws and decrees issued over the years. Namely, Law (No) 26 of 2007, Law (No) 33 of 2008, Decree (No) 1 of 2009 Regarding Rentals in the Emirate of Dubai and Decree (No) 2 of 2011, which can all be found on Dubai s Real Estate Regulatory Agency s (RERA) website. In cases where the tenant or landlord has a good reason to break a the rental agreement early, or because of a dispute they can file a complaint with the Rents Committee, set up to hear disputes and known for fair decisions. Given the rise in rental rates and the conflict between landlords and tenants, Tamimi summarized the two main laws that pertain to rent increases and eviction. Law No 33 of 2008 and Decree No. 2 of 2011 Regarding Rentals in the Emirate of Dubai H.H. Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai, issued Decree No. 2 of 2011 Regarding Rentals in the Emirate of Dubai in January 2011 (the Rent Cap Decree ). The Rent Cap Decree defines the maximum rent increase for properties leased in the Emirate of Dubai during 2011 and is applicable to all types of property. The Rent Cap Decree has left the rent cap parameters unchanged from 2009 and According to the Rent Cap Decree: 7

8 There should not be any rent increase if the rent for the property is up to 25% below the average similar rent. If the rent value is 26% to 35% less than the average similar rent then the maximum rent increase could be equal to 5% of such value. If the rent value is 36% to 45% less than the average similar rent then the maximum rent increase could be equal to 10% of such value. If the rent value is 46% to 55% less than the average similar rent then the maximum rent increase could be equal to 15% of such value. If the rent value is less than 55% of the average similar rent then the maximum rent increase could be equal to 20% of such value. For the purpose of the Rent Cap Decree, the similar rent value of the property is to be calculated with reference to The Rent Index of the Emirate of Dubai approved by RERA. Articles 9 and 13 of Law No 33 of 2008 states that when the Landlord and the Tenant cannot agree the rent, then the Rent Committee specifies a rent increase as specified by RERA in accordance with the general economic circumstances of Dubai and in accordance to the to the property s status, the similar market rent in the same area and in accordance with any valid legislation in the Emirate regarding properties, rent and any other factors the Rent Committee may take into account. Eviction during the term of the lease is only possible when there is a breach of agreement or the law or where the building is condemned or dangerous. At the expiry date, eviction has to be as per the below Article 25(2) of Law No 33. The landlord may demand eviction of a tenant upon the expiration of a tenancy contract limited to the following cases: If the owner wishes to demolish the property for reconstruction or to add new constructions that prevent the tenant from benefiting from the leased property, provided that necessary licenses are obtained. If the property requires renovation or comprehensive maintenance which cannot be executed while the tenant is occupying the property, provided that a technical report issued by the Dubai Municipality, or accredited by it, is submitted for this purpose. If the owner of the property wishes to recover the property for use for himself personally or by his next of kin of first degree provided that, he proves that he does not own a suitable alternative property for that purpose. If the owner of the property wishes to sell the leased property. In terms of clause (2) of Article 25(2) of Law No 33, a landlord must notify the tenant with the reasons for an eviction at least twelve months in advance. 8

9 New Regulatory Developments The Dubai Economic Development Department (DED) has made it mandatory for the commercial establishments to produce lease contracts registered with Ejari for the renewal and amendment of commercial licenses. Ejari is the official online registration of property on lease in Dubai introduced by the Real Estate Regulatory Agency (RERA). The new rule will come into force for the renewal and amendment transactions beginning in 2012, according to joint announcements from DED and RERA. The Dubai Government introduced a rent cap of 15% in 2006, meaning that landlords could not increase the rent more than 15% on the previous year. In 2007 the rent cap was set at 7% and in 2008 was reduced to 5%. Dubai s Real Estate Regulatory Agency (RERA) (which is the regulatory branch of the Dubai Land Department) set these caps and introduced a rental index in January 2009 to replace these percentage caps. The rental index is updated every four months and landlords are not allowed to charge above the stated area price. All individuals and companies acting as landlords are required to register their properties via the Ejari lease registration service. Meaning my rent in Arabic, Ejari was set up in 2007 by RERA, to collate leased property information. Information entered into the Ejari system can be upheld in court. The Dubai Land Department launched a new, upgraded registration system Al Tabou in March Real estate brokers should comply to receive or renew trade licenses. Marwan bin Ghalita, chief executive, RERA, said linking the approval of commercial licenses with the registration and documentation of lease contracts in RERA is for the benefit of the business sector and an advantage that helps it rank higher in the global competitiveness index issued by the World Bank. 9

10 What to Look Out For When Signing a Lease Before you enter into a Tenancy Contract, confirm the Lessor s title to the Property. If the Lessor is in fact sub-leasing the Property, the written consent of the Owner will most likely need to be obtained. You should request a written confirmation that this has been done before entering into the Agreement. This is imperative, because, if you have not contracted with the correctly authorized person or entity and a dispute arises out of the Tenancy Contract, you will have difficulty in enforcing your rights against the true Owner and/or Landlord, who in such instance would not have received your monies directly, and it may well happen that the contracting party absconds with your funds. Tenants should be aware of possible hidden costs that are not included in the Rent, such as chiller costs, maintenance costs turnover rent, and service charges. The Tenancy Contract should clearly stipulate which party is responsible for major and minor maintenance on the Property. A commercial tenant is also responsible for the Real Estate Department s tax of the five per cent of the RERA rental index of their areas, payable to the Government of Dubai. Municipality taxes on annual rental payments are currently 5% on residential rent and 10% on commercial rent. In the event that you are utilizing a Real Estate Agent for the transaction, confirm that they are registered as such with the Real Estate Regulatory Authority and always request a copy of the Power of Attorney issued by the Landlord/Owner of the Property to the Agent authorizing him/her to act on their behalf in interim into the Agreement with you, for example, in receiving the rent cheques. In the event that the Tenant wishes to rent the premises on a long-term basis, the terms of the renewal clause in the Tenancy Contract should be read carefully in order to ensure that a renewal of the Contract is not within the sole discretion of the Landlord, and in this regard it would also be wise to stipulate the rate of any increase of the Rent upon renewal of the Contract. 10

11 Conclusion The lease or tenancy contract is a very important document, as it dictates the terms of the arrangement between the landlord and tenant and lays out the rights and responsibilities of the two parties. One key provision in a lease is the rent, including the amount to be paid and when the money is due. Two important issues a tenant should consider carefully when negotiating the lease are the initial condition of the premises when the property is handed over at the beginning of the lease and the responsibility of ongoing maintenance of the property. The terms of renewal for the lease are also important, especially if the tenant intends to use the premises for a period longer than that which is covered by the lease. All residential and commercial building leases signed in Dubai in 2012 must be registered at Ejari.com. This will help standardize rental contracts in Dubai. 11

12 References Al Tamimi & Company. Trench and Associates

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