I discovered the hard way today that Landlord-Owner-Borrowers are having issues paying their brokerage fees due to the "Sweep Clause" in their CMBS loans. I am sending the CRE agents this information to bring to your attention an important development regarding new lease deals inked in the last 30 days and going forward and getting paid your earned brokerage fees.  I was informed today by the owner-landlord (after their leasing agent went dark on me and I had to track down the Landlord at their offices) on a lease transaction I completed last month, that their CMBS loan has a "Cash Sweep" clause.  According to this particular Landlord-Owner-Borrower this "Cash Sweep" clause restricts the Landlord-Owner-Borrower operating capital to pay its bills such as, yes, brokerage fees among others. In these cases the Landlord-Owner-Borrowers are being required by their lender to get said lender's permission to pay any and all expenses related to the secured property. In California, according to this same Landlord-Owner-Borrower their lender has invoked their "Cash Sweep" clause and they can not pay ANY expenses until "after the State is reopened for business and the Covid crisis is over". To be clear in my case, the Tenant I represented and obtained a fully executed lease with has NOT gone dark and IS honoring all elements of their lease agreement, proceeding with their Tenant Improvements at Tenant's own cost.

This new development presents another challenge for brokers already working to satisfy the many concerns of tenants in a market experiencing fear, anxiety and questioning what the future holds. Where will the market be in 2, 6 or 12 months from now? Add to that how will the CRE broker get paid their fee.

In the meantime here are some solutions for brokers working on new leases in these new market conditions:

1. Discuss in advance with the Landlords and their agents if there are any "cash sweep" clauses. If there are "cash sweep" clauses, ask if the lender will permit brokerage fee payment on new lease transactions. G. I. I. W. Get It In Writing.

2. Incorporate the terms of the brokerage fee into the lease agreement and have that amount withheld as part of tenant payment of their first month's rent and security deposit funds collected at the time the lease is executed. Have the Tenant's check made payable to your brokerage firm and payout remaining balance (if any) to the landlord.

3. Collect a check simultaneously with the delivery of the tenant's check to the landlord.

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