The lease audit clause: Is it fair for tenants?

Abstract

Highly restrictive commercial lease audit clauses have come into vogue in commercial leases over the past decade or so. Their original purpose was to provide a means by which the tenant could verify that the landlord’s accounting was reasonable and proper. The reason for its popularity with landlords is that it has evolved into a tool that allows landlords to capture funds in excess of the agreed‐upon deal based on the intent of a lease contract. Audit clauses typically relate to operating expense statements ‐ sometimes referred to as either OPE (operating expense) or CAM (common area maintenance) statements. Audit clauses have also been used, but with less frequency, by landlords for other billing categories, including electricity surveys and other tenancy‐related charges. Landlords have a fiduciary responsibility to bill their tenants properly. There should be full disclosure and transparency of the detail relating to a landlord’s calculations behind any and all bills rendered to a tenant. Lease audit clauses that limit tenant rights to transparency in a landlord’s billing system should not be allowable. Lease audit clauses are viewed by savvy end‐user tenants as a landlord’s ‘licence to steal’. Time‐limited lease audit clauses motivate landlords to overcharge their tenants: once the audit time limits have passed, the landlord may capture improper payments made by trusting and unsuspecting tenants. The audit clause is generally unfair to a tenant and as such should not be allowed in leases. If one must be present in a commercial lease, then it should at least be tied to a reasonable time frame ‐ such as the local jurisdiction’s statute of limitation, or a minimum of three years. Whether or not an audit clause exists in a lease, a tenant should make every effort to have a specialist lease audit firm review the lease and billings regularly to ensure compliance with specific lease language.

Citation

Harris, E. (2004), "The lease audit clause: Is it fair for tenants?", Journal of Corporate Real Estate, Vol. 6 No. 4, pp. 335-344. https://doi.org/10.1108/14630010410812414