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By Griffen Thorne, Attorney at Harris Bricken
Cannabis leasing is incredibly complicated for both lessors and lessees. But things can get a lot more complicated in competitive license jurisdictions. I’ve worked with both lessors and lessee-applicants in competitive licensing jurisdictions, and today want to highlight some of the key things I’ve seen over the years.
#1 Why competitive licensing is different from everything else
If you’re reading this and are not familiar with competitive licensing, I’m referring to localities (or in some cases, states) that only allow a small, fixed number of licenses. In competitive licensing jurisdictions, you’ll often see dozens of applicants for a small handful of available licenses – for example, thirty or so applicants for four licenses.
You may point out that most cities in fact have some kind of cap on licenses, either expressly, because there is a finite application window, or because there is restrictive zoning. However, what I refer to as competitive licensing is a situation where, maybe 1-6 licenses will be available in one short application period.
This is why I refer to “competitive” licensing. And it gets truly competitive. Applicants may end up spending hundreds of thousands on legal, design, consulting, and other fees to just to submit an application. Without any guaranty of success.
So as you can imagine, this creates some pretty interesting dynamics for cannabis leasing. And that brings me to point #2.
#2 Is a cannabis lease even mandatory?
Put yourselves in the shoes of a competitive license applicant. You may be spending hundreds of thousands of dollars submitting an application with no guaranty of success. You may be up against a dozen or more highly capitalized, highly qualified companies looking for the same license. Do you want to get locked into a multi-year lease without any guaranty of being able to operate? Obviously not.
Many localities address this by requiring applicants to provide something less than a full-fledged lease. This may include a lease with an early termination right if the license doesn’t come through. Or it could be as simple as an option to lease or even an LOI. Recently, the trend seems to be in favor of binding options to lease, which is generally more “binding” than a simple LOI.
In all of these cases, the lessor usually wants something to allow the lessee to apply for the license. If there’s a lease with an early termination option, this may be reduced rent for some initial period – sometimes even reduced through a buildout. If it’s an option, there may be a monthly option fee that would be commensurate with some kind of reduced rent. But overall, lessors are generally charging the lessee something. After all, they are keeping the property off the market while the lessee applies for a license.
#3 Location, location, location
Both competitive licensing and more “open” jurisdictions limit potential locations to specific zones and areas within their borders. There are also generally buffer requirements (e.g., you can’t be next to a school). In my experience though, competitive licensing jurisdictions tend to be even more restrictive in terms of where applicants may apply. A trend I’ve seen is that applicants must often get a “zoning verification letter” prior to applying. A ZVL will allow the city to provide some initial sign-off on the proposed location.
In a jurisdiction with a restrictive location map, potential lessors are in for a lot of calls. I’ve worked with competitive licensing lessors who get numerous calls from brokers or potential lessees for leasing in restrictive map situations like this. Obviously, this means that rental value can go up – way up.
At the same time, lessors generally have zero experience with cannabis and are unfamiliar with cannabis laws. Lessors must be careful not to make promises about zoning, location compliance, buffer zone restrictions, or anything else. This should be squarely on the shoulders of the prospective lessee. Smart lessors disclaim and representations about basically anything in their agreements with the lessees.
#4 Lessors should expect some participation in the process
In any competitive cannabis licensing process I can remember, lessors are required to submit documents to the city that authorize the applied-for use. For some reason, simply signing a lease that authorizes the use just isn’t enough. So many localities require lessors to sign documents acknowledging that their lessee will be authorized to engage in cannabis use once licensed. The trend now seems to be to require lessors to sign not just statements, but notarized attestations.
Some localities go above and beyond. I’ve seen some that require lessors to certify that they only leased the property to the lessee at issue, in an effort to prohibit lessors from entering into multiple options to have fallback options if one proposed lessee doesn’t get a license (more on that below). Lessors should be aware of what they are signing so they don’t end up liable for some kind of false statement or even perjury.
#5 What can lessors do to hedge their risk?
Most localities require that lessors only authorize one specific entity to apply for a license at the lessor’s property. This is good for the proposed tenant, who has no competition for the specific property (after all, what would happen if two companies won at the same property?). But it’s not great for lessors, who have to trust that their proposed lessee will beat out all the competition or walk away. What landlord would want to get property leased for only a few months and start that process all over again?
Some cities address this by allowing lessors to authorize multiple applicants at the same address. This is obviously better for lessors. But it’s not great for lessees for the inverse reason of what I noted above. In those places, lessors should expect to see proposed lessees demanding exclusivity – and in those cases the lessors may be justified in asking for higher option payments.
Conclusion
Competitive licensing is tough, but can be made a lot more difficult if the property owner and proposed lessee aren’t on the same page. Dealing with the issues raised above is critical at the outset, or an applicant can waste a lot of time and money on a situation that won’t work. Stay tuned to the Canna Law Blog for more cannabis real estate issues.
Re-published with the permission of Harris Bricken and The Canna Law Blog
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