Looking for some advice on a square footage discrepancy with my landlord
I bought an existing small business and assumed the lease in 2019.  I am in the process of negotiating an extension with the landlord.  I am in a retail location and there are offices on the 2nd floor above us.  I negotiated what I consider a fair deal for renewal that includes a reduction in rent psf.

 Just out of curiosity, **I decided to measure the square feet, and found the lease is about 400 sf above my actual space.**  I am measuring from the outer exterior walls (length) and mid point of the interior walls (width) that but up against my neighbors on both sides.  This is how the lease describes measuring SF.  This is signicant; the lease says my SF is 2200 and I'm measuring 1,800.  I have been paying $19.50 psf annually, so we're talking about $7,800 in rent per year.  I did not measure the SF when I assumed the lease.  I know, stupid on me.  CAM is triple net, split pro-rata with all the other dozens of tenants.

I suspect they made an error many years ago with the prior tenant lease and included a public interior stairwell that goes to the 2nd floor offices and is directly to my front left.  The entrance to this stairwell is outside the building and not connected to me in any way.  It also does not benefit me in any way.  So the front of my space is narrower than the majority of the space behind the stairwell.  I think they just measured a rectangle when my space is a smaller shape.

Am I correct that this public area should not be included in my square footage?  If the answer is no, I plan to request a lower total on the lease.  This would be a significant savings to me.

Beyond that, do I have a legal case for being overcharged on prior rent and CAM?  Both are calculated based on square feet.

Thanks in advance.
[{"id": "i7cxnht", "text": "Just like the rent the square footage is negotiable.", "replies": [{"id": "i7cy7k3", "text": "Can you please elaborate?  Square footage can be objectively measured.   I could see some variations, but this is about a 25% increase.", "replies": [{"id": "i7g5bf8", "text": "Measured by who?  What do you do when the county sf, plans sf, sf you measure and sf I measure are all slightly different?  \n\nIt isn't a hypothetical question, generally you state in the lease the sf that is to be used to avoid this.  Ask a lawyer but unless you are going to allege fraud or something and have something to back it up you are probably going to have a hard time on this.", "replies": [{"id": "i7ie7bc", "text": "You can absolutely deem a square footage. Not so common anymore, but this happened all the time in napkin deals back in the day.\n\nIn OP's case this doesn't apply since there is a measurement method outlined in the lease.", "replies": [], "depth": 4}], "depth": 3}], "depth": 2}], "depth": 1}, {"id": "i7db53b", "text": "a few things: 1) there is usable area and rentable area. Rentable area includes things like common areas, hallways, washrooms, utility rooms\u2026 etc. you\u2019re probably paying based on rentable area. 2) sometimes the parties agree to a \u201cdeemed\u201d area, ie both tenant and LL just say, \u201cwe\u2019re calling it x\u201d and it is what it is. 3) IF your lease permits a re-calculation of the rentable area, it will likely have a procedure to do so and a standard for measuring - there are lots of them (ANSI, BOMA and the year, type, etc.) so understanding the standard is also important. Remeasuring MAY permit the rent calculations to be adjusted, it may not\u2026 it may allow for only an increase, but not a decrease. It may allows allow for retroactive adjustments. \nThere\u2019s lots of moving parts and it\u2019s impossible to give the best advice without seeing your lease.\n\nLegal recourse beyond the scope of the lease would probably require that you prove that the LL intentionally misrepresented the area and tricked you, otherwise, there are tons of protections that could have been negotiated into the lease which the courts would probably have expected you to do if you cared to do so. One of the critical reasons why a good broker and lawyer are invaluable in commercial leasing.", "replies": [{"id": "i7df7kb", "text": "Thanks. Would Rentable area all be assigned to one tenant, or split among all the tenants?  I don't see why the stairwell would be charged to me alone, especially since I drive no benefit from it. It's for all the 2nd floor offices.\n\nThe lease does not go into useable or rentable area.  It only says the approximate square footage is .... and explains how to measure it.", "replies": [{"id": "i7dhg31", "text": "Depends. And just because you don\u2019t derive a direct benefit doesn\u2019t mean that there isn\u2019t an indirect benefit. It\u2019s impossible to know without having it properly measured to an industry standard. You may just want to ask the LL if they would consider having the building measured and ask for the area certificate. Even then, the lease governs what happens and whether an adjustment would be applied.", "replies": [], "depth": 3}], "depth": 2}, {"id": "i7fz33y", "text": "This is correct. You\u2019re measuring closer to a usable sf, but probably being charged on a rentable sf that includes a load factor for common areas. All other tenants should have this built into their sf as well. A 22% load factor isn\u2019t outside the norm at all.", "replies": [], "depth": 2}], "depth": 1}, {"id": "i7divex", "text": "As someone else mentioned, there are different ways to measure space. There will be a gross up added to the usable area which includes common areas. I would strongly recommend you find a broker to help with your extension as they can help hammer out these details and work to find savings for you. A lot of people try to negotiate themselves and don't realize how much they are leaving on the table - both in dollar amounts and negotiating favourable lease terms. \n\nIn every lease I negotiate we have language that the space be measured within a certain amount of time because the estimated SF isn't always correct and you want to make sure the tenant is paying accurately. In your negotiations you could add this language and stipulate the way that it is measured (which BOMA year etc) - again, there's lots of ways a good broker can help you negotiate a wayyyyy more favourable lease extension.", "replies": [], "depth": 1}, {"id": "i7e9h50", "text": "Why do you assume they made an error equal to 1/3 of the sq ft? That's a huge mistake which seems ridiculous to make assumptions about.", "replies": [{"id": "i7fctsm", "text": "I said I suspect, not I assume. Obviously I do not know if this was intentional or not. But the numbers would approximately add up if that was the case.", "replies": [], "depth": 2}], "depth": 1}, {"id": "i7flmmw", "text": "As was mentioned above in addition to the square footage for your own space you also pay a proportional amount for common areas as well. A super simplified example would be if your office is 20% of the building you would be billed for 20% of the common areas. I\u2019m not sure how large of a building you are in, or how sophisticated your LL is, maybe they have a breakdown of the calculation?", "replies": [], "depth": 1}, {"id": "i7fmwrh", "text": "If you assume the lease, you assume all terms in the lease.  That said, you need to hire an architect to draft a floor plan to confirm your findings.  A Tenant measuring with a tape measure is not ideal.", "replies": [], "depth": 1}, {"id": "i7fxg5z", "text": "Not a lawyer and I don\u2019t know what your lease states. The psf rate is just a simplification of the rental rate. Your lease likely says \u201capproximately xxxx sf.\u201d If you\u2019re over paying show your books or find a different location.", "replies": [], "depth": 1}, {"id": "i7hefe7", "text": "Several of our peers have mentioned \u201crentable\u201d v. \u201cuseable.\u201d  That distinction matters in an office lease, where there will usually be terms like rentable, useable, common area factor, load factor, etc.  However, you mentioned you have a retail space with a definition stated in your lease of how to measure the square footage of the premises. What you describe (outside face of rear wall to \u201cdominant feature\u201d of the front wall, which is usually a glass storefront in retail, and the center of adjacent demising walls) is a very common definition of measuring retail space. If your lease doesn\u2019t mention a \u201cload factor\u201d or other gross-up language, then your lease is clear on how to measure your premises.  \n\nIf you have office space above you, then there might be language in your lease about how to measure in a \u201cmixed use\u201d development (i.e. retail and office spaces); however, if the measurement definition is clear, then it\u2019s clear. \n\nAlso, \u201cvertical penetrations\u201d like elevator shafts, stairwells and chases are typically excluded from gross square footages for purposes of establishing the load factor, so the area of a stairwell would often be excluded anyway. \n\nI recommend you talk to your landlord before pursuing a legal remedy. I\u2019ll give you the benefit of the doubt on your measurements. If I hire two draftsman/architects to measure the same space, their footages will not match, but they won\u2019t be too far off. The accepted \u201cleave it alone\u201d standard for variances in measurements is 2.0%. Your variance is much more than that. If your landlord refuses to engage in a discussion about it, then you can consider escalating. \n\nAlso, all my leases give a time period for disputing square footage measurements or the measurement is deemed accepted (30 days in my case). \n\nSource: retail/office/industrial/mixed-use landlord.", "replies": [{"id": "i7hhca0", "text": "Thank you for a very helpful explanation.  I agree and would never go to a lawyer before first discussing this with the landlord.  I'm just trying to understand how SF is measured in commercial spaces and see what options may exist.  I will triple measure before I say anything to be safe, but honestly it just isn't very difficult to measure square footage.  I understand how there will be slight variations when three people do the measuring, but it certainly should not be a 25% variance.", "replies": [{"id": "i7hhufn", "text": "I agree with you - measuring retail space is straightforward. However, measuring office space is not, for all the reasons our peers mention elsewhere. \n\nIn the end, the only method that matters is the one expressed in the contract between you and your landlord (i.e. the lease).", "replies": [], "depth": 3}], "depth": 2}], "depth": 1}]