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Occupant void vs major vertical penetration

Mirgul Omurzakova
Capital Partners
April 11, 2013

1. The Owner was building a mall of a certain shape and layout. The potential Occupier (department store) was looking into taking some space in the future mall. The initial design of the mall did not have a department store as part of the concept.
2. Since there were no alternatives to provide the space without introducing major changes into the floor layout and circulation of the mall, the Owner had agreed to allocate a corner where multi level allocation of the Occupier was possible. (i.e. without this change the department store concept was not possible in the mall.) This particular area was already under construction and the Owner was building voids with escalators in the area. The Occupier took the space, taking a corner with already provided voids and escalator equipment installed. The department store is operating on three vertically adjacent floors connected via these voids and escalators (there are no other means of vertical communication within the Occupier premises between the floors).
3. Voids and escalators were built by the Owner, the final fit out and the operation (maintenance) and control of these escalators is done by the Occupier.
4. Voids are inside of the leased Occupier area.
5. Voids are controlled by the Occupier (the access to the escalators is available during working hours of the department store (the Occupier).
6. Had the Occupier not leased the premises for accommodating its department store in the mall, no changes would be introduced in the mall layout and circulation and the escalators and the voids would have remained as part of the mall circulation.

Discussion: There is a reference in the BOMA standard that escalators and voids that are built by the Owner are classified as Major Vertical Penetration. The standard also states that occupant voids are those that provide vertical circulation on the Occupier’s premises located on two or more floors, and these can be installed by the Occupant or for the Occupant. The standard also states that the GLA of the tenant is the area that is legally owned and controlled by the Occupant.
Question: in the above case, how should one classify these voids - as Occupant Void or a Major Vertical Penetration? On one hand, they were built by the owner, on the other hand they serve as a vertical circulation of the Occupier and the access, the use and the operation of them is controlled by the Occupier.

Adam Fingret
Extreme Measures Inc.
April 11, 2013

Hi Mirgul,

As you have already discovered, the Standard does not contain a straightforward answer to your question (though it's a good question). If treated as Occupant Voids, these areas will be included in the GLA. If treated as Major Vertical Penetrations, they will be common areas or non-leasable areas.

How this is handled is a matter of opinion, negotiation, and best-practices. I am inclined to think that the Occupant Void is the better of the two options as it is more aligned to what was actually constructed, as opposed to what was originally intended by the builder/owner. I personally think that the as-built condition of the building is almost always the most practical source of information for most BOMA calculations.

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