Why Some Landlords Require Lease Deposits

During my first few months as a broker, I remember negotiating on a space in Midtown West and discovered the landlord’s broker required a deposit (of about $2000) from the prospective tenant in order to draft a lease.

I was disappointed and immediately asked if we could waive or at least lower the deposit amount. We ended up not seeing eye to eye on all the terms of the deal and never getting to the point of requesting a lease, but I walked away cautioning myself to be careful of bringing other tenants to the building because of the lease deposit.

A few years later I have instituted a lease deposit policy on some of my own listings. The vast majority of commercial landlords do not require any kind of deposit in order to send a prospective tenant a lease.  So wouldn’t I have a problem getting deposits from people?

Yes. Especially if they’re not committed to taking the space.

The reasons for the lease deposit are easy to understand:

  • An attorney will charge an owner to draft a lease (and for any subsequent comments/changes)
  • Owners typically put any other offers they receive on the back-burner once they have agreed to terms with a tenant.
  • Often they will even discourage others from looking at the space

So the owner is making some commitment to the tenant (and spending a little money) and without a lease deposit, the tenant is free to back out of the deal at any time for any reason. This would cost the owner legal fees and cause him to potentially miss out on other interested tenants.

By asking for a deposit that is refundable in the event the tenant finds the legal terms of the lease unacceptable, but not refundable in the event the tenant reconsiders, the landlord knows the tenant is serious before spending money on the attorney and turning away other prospective tenants. They also receive compensation in the event the tenant backs out.

There are a few reasons a tenant would be reluctant to provide a deposit:

  • They’re not sure they want the space
  • They are deciding between more than one space and want to keep both in play
  • They plan on negotiating further after they receive the lease (this is not considered an ethical practice and usually not tolerated regardless)
  • Out of principle (since no one else is asking them for one)

The first three would all be good examples of how a landlord can use the deposit as a screening process. As far as the “Why should I have to give a deposit?” argument, a prospective tenant can usually appreciate the logic of why a landlord wants one.

They also gain some benefits. If a landlord has a deposit, the landlord is more confident about the deal, meaning they are less likely to show the space to others and are likely going to be more patient with the tenant. For example, if I didn’t hear from a tenant for 4 days after sending them a lease, I’d assume there was something up with the tenant and encourage a landlord to pursue other offers. However, if there was a deposit, I’d likely feel okay about it and let the tenant take their time since they’ve already committed.

They key is that a tenant should decide they want the space before they get a lease, not wait to decide until after they get the lease.

Here’s an example of a situation where I waived a deposit and lost a deal because of it. I had a small space at 36 West 44th street and two brokers submitted offers on the space with a couple days of each other.

Both tenants were willing to go very close to the asking price and in the range where the owner wanted to make a deal. The determining factor (as it usually is) was the track record of the companies and the amount of work each tenant was requesting.

We decided to go with the more established tenant that needed less work. We made the urgency of the situation clear to the broker and his tenant quickly signed the term sheet, but said he didn’t want to comply with the deposit because no one else needed him to.

We didn’t want it to be a dealbreaker so we moved on and I rushed our attorney to issue him a lease asap. After about a week of calling his broker and being told that the tenant will get back to us soon or that the broker is waiting to hear from him, the tenant finally admitted that was going to pass on the space and renew on his existing space unless we could drop the price from $40 psf to $25 psf.

Obviously, this was a ridiculous request and possibly an example of him planning to negotiate after he got the lease, rather than the surprise, last second development he made it out to be.

Obviously, my next call was to the other broker, but at that point, her (very serious) tenant had already locked up another space.

Had we stuck to our guns about the deposit, not sent the lease to the other tenant, and sent it to her (assuming her tenant would have complied with the deposit), we would have had the space rented (or at least had the first tenant’s deposit as a consolation).

I finished another deal in the same building last week. It was for a small space and with an international company so the lease negotiations took much longer than usual. I did receive a bunch of calls from other tenants that seemed like potentially great fits in the meantime. Had there been no deposit, I probably would have shown the space and presented any good offers to the ownership, tempting them to go with someone else or at least put more pressure on the other tenant to sign faster. Since we had their deposit, I just put them on a callback list and we ended up completing the deal without any unnecessary complications or added stress.

It’s important to understand that even though there may not be another interested party at the time you request the lease, there could easily be one the following day pressuring the owner for the space. The more certainty you give an owner, the less likely they are to show the space to other tenants and consider other offers.

To give another example of how a lease deposit simplifies the process of renting a space, a few years ago I was representing a landlord and we had three good offers on the same unit. The market was beginning to spiral downwards and we were worried about making sure we got the space rented asap.

The owner decided to send a lease to all three tenants and see who followed through (or who followed through first). In this instance, the strategy actually worked as two tenants were unresponsive and one signed the leases immediately.

However, I was put in a very stressful position and the other brokers and tenants certainly did not appreciate the approach (understandably). We also ran the risk of one of the less desirable tenants signing the lease before our top choice.

If we had prioritized which tenants we wanted most and offered them the lease exclusively provided they gave us a deposit, it would have gone smoother, we would have gotten our first choice and we would have avoided pissing off three brokers and tenants while accomplishing the same goal.

As a broker, now I am happy when I see that a landlord requires a deposit on a space my tenant wants. This way I know they are renting the space as soon as they get the lease, rather than worrying if they are just jerking me around for a few weeks and I can avoid the potential embarrassment of telling a landlord my tenant has backed out of the deal after we’ve already had the lease for a week. Or the irate phone calls from the landlord’s broker demanding that the tenant compensate them for their attorney’s fees or face a lawsuit.