Douglas S. John
While big box retailers such as Walmart, Kohl’s, Lowe’s, and The Home Depot are performing relatively well, the big box business model of providing customers with a nationwide network of large stores, a wide variety of products, and low prices may be slowing down. While some big box spaces are being re-tenanted by large-format retailers, owners are often converting stores for second-generation users such as call centers, educational facilities, medical offices and gun ranges.
While these changes are ominous for property owners, the silver lining is that there is a significant opportunity to reduce their tax liability. The following key concepts, based on the income capitalization, cost, and sales comparison approaches to value, will help taxpayers and their attorneys ensure they are fairly taxed.
Changing Lease Terms Erode Value
Where state law requires assessors to value property using fee-simple assumptions of market rent, rather than contract rent, it is critical to explain to assessors how market conditions affect lease terms and property values.
Colliers International’s white paper, “Re-Tenanting Bankrupted Big Boxes; Paving the Way for Retail’s Rebound,” outlines landlords’ challenges. To boost occupancy and retain tenants, landlords are slashing lease rates. Asking rents for replacement big box tenants were nearly 18 percent less than for the previous tenants, Colliers found, and for freestanding stores the drop in asking rents was nearly 37 percent. Lease rates will likely continue to fall as demand for big box space remains flat or declines, and the supply of big box space increases.
Landlords’ net operating income is eroding even faster than lease rates, due to the cost of free rent, tenant improvement allowances and other concessions they must offer to compete for tenants. It is critical to explain to assessors how these market changes impair net operating income and reduce value.
Finding and Measuring Obsolescence
Many taxing jurisdictions initially use the cost approach to assess properties. For big box stores, this approach generally yields an inflated value because assessors seldom fully account for all forms of depreciation, especially external and functional obsolescence.
Functional obsolescence, which is a loss in value due to a building’s design, is prevalent among big box stores. Many were constructed with specific features and sized to accommodate a particular business model. Best Buy, Staples, Office Depot and other big box retailers’ efforts to reduce store size indicate that significant amounts of floor space are no longer productive. In fact, some property owners are renting excess space within big box stores to doctors, optometrists, and even grocers.
A more significant problem for big box stores is external obsolescence, which is a temporary or permanent impairment of the property’s utility due to factors outside the property itself. Changing market conditions in the past five years have caused a realignment of the retail real estate market, driven by two factors. A new norm of consumer frugality has emerged in reaction to elevated consumer debt levels and persistent high unemployment. Secondly, the Internet has virtually eliminated bricks and mortar retailers in categories such as books, music and videos, and online retailers control almost 20 percent of the market share for baby products, electronics and toys. The Internet’s erosion of big box stores’ market share for certain categories of products will continue to accelerate.
While it is often easy to identify external obsolescence, it is crucial owners work with a property tax attorney to develop the most effective strategy to measure external obsolescence. That may require a market extraction analysis, market data analysis, feasibility rent analysis, or a net income shortfall analysis. A well-prepared obsolescence analysis can counter the assessor’s arguments against adjusting for obsolescence.
Sales Comparison Approach: The Correct Legal Standard
When using the sales comparison approach in property tax appeals, it is important to use the correct legal standard for selecting comparable properties. In most states, the law requires assessors to determine property tax values using a fee-simple appraisal approach where the property is free of encumbrance or restriction, such as a lease. Big box stores, however, present challenges because they are typically built to suit the retailer’s business model, and because the construction costs are financed through build-to-suit lease arrangements. When big box stores sell, they sell based on the financial value of the build-to-suit leases in place.
Thus, only sales of vacant properties or second-generation properties unencumbered by above-market leases should form the basis of the sales comparison approach. Currently, there are sales transactions of vacant big boxes, either locally or regionally, to aid in deriving a value. To arrive at a true market value and produce a correct assessment, it is important for taxpayers and their attorneys to ensure that assessors follow the law when using comparable sales.
The three approaches to value discussed above should provide taxpayers with sufficient evidence to ensure they are fairly taxed.
— Douglas S. John is an attorney in the Tucson, Arizona, law firm of Bancroft & John, P.C., and a member of the Arizona and Nevada American Property Tax Counsel, the national affiliation of property tax attorneys.