How is the monthly Holdover Rental calculated for an Aplus franchisee who remains in possession of the premises after the lease term?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
Damages for Holding Over
- (2) If you remain in possession of the Premises beyond the Lease Term hereof for whatever reason, then Sunoco may elect to treat you as a tenant-at-will, with the further right to terminate such tenancy upon thirty (30) days' prior written notice to you. You shall be obligated to pay to Sunoco a Holdover Rental for such tenancy equal to one hundred fifty percent one hundred fifty percent (150%) of the Rent for each month or part thereof of such tenancy at will ("Holdover Rental"). The monthly Holdover Rental shall be calculated by using an average of the prior three (3) months total Rent due Sunoco multiplied by one hundred fifty percent (150%). Acceptance by Sunoco of Holdover Rental for any month shall not be construed as a waiver of Sunoco's rights to evict you at any time after the termination of this Lease. Nor shall such acceptance of Holdover Rental by Sunoco be treated or construed as an expressed or implied renewal or continuation of this Lease. No action by a representative of Sunoco, such as a promise or representation made orally or by correspondence, shall be treated or construed as an agreement to renew or continue this Lease, and you are not entitled to rely upon any such action, promise, or representation in that respect.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, if a franchisee remains in possession of the premises after the lease term expires, and does not have a separate written agreement with Sunoco, Aplus may elect to treat the franchisee as a tenant-at-will. In this situation, Aplus has the right to terminate the tenancy with thirty days' prior written notice.
The franchisee is obligated to pay Aplus a Holdover Rental equal to 150% of the rent for each month (or part of a month) that they remain on the premises. This Holdover Rental is calculated by averaging the total rent due to Sunoco for the prior three months and then multiplying that average by 150%.
The FDD specifies that Aplus's acceptance of the Holdover Rental does not waive its rights to evict the franchisee at any time after the lease termination, nor does it imply a renewal or continuation of the lease. Furthermore, no action by an Aplus representative, whether oral or written, can be construed as an agreement to renew or continue the lease, and the franchisee is not entitled to rely on any such action or representation.