3 Reasons why you need a written Equipment Lease Agreement

Bernard Chung

Partner, Advocate & Solicitor, Supreme Court of Singapore

What is an Equipment Lease Agreement?

An equipment lease agreement or equipment hire agreement, is a written agreement between two businesses where one business (the lessor), leases or rents equipment to another business (the lessee) for a fee (rental).

Businesses whose business model involves:

– hiring out equipment for a fee, or

– offering their customers a paid trial of equipment, with an option to purchase the equipment during the lease period,

should have a well-written equipment lease agreement, for 3 important reasons, which we explain below.

 

Business outcomes of an equipment hire agreement

The hiring or leasing of equipment is a common business practice, as it allows capital-intensive businesses to:

– conserve cash and control cashflow

– test out expensive equipment to see if it fits with its business needs

– upgrade outdated equipment or provide access to new technology

– maintain a more attractive balance sheet

– enjoy tax benefits

It is used in many industries, and involves the leasing or hiring of equipment ranging from coffee machines, aircraft, ships, photocopiers, pool tables, kitchen equipment and heavy machinery to vehicles. An example of an equipment leasing business is Lion City Rentals, the Singapore-based car leasing arm of Uber.

From the perspective of the lessor, the equipment is rented out and generates revenue for the lessor. Since ownership of the equipment stays with the equipment owner or lessor, it is free to re-sell the equipment at the end of the lease period or rent it out to another party, so that the equipment continues to generate revenue for it.

It is common for equipment leases to come with an option to purchase the equipment.

 

Three Reasons Why Lessors need an Equipment Lease Agreement

Many equipment hirers or lessors operate their business without a written equipment lease or hire agreement, and rely on verbal agreements or simple quotations or purchase orders. This is a major mistake, for the following 3 reasons:

– Protect against bankruptcy or insolvency of the lessee or hirer

By stating clearly that the ownership of the equipment stays with the equipment lessor, it protects the equipment lessor against the insolvency of the equipment lessee or hirer.

– Have the right to charge late payment interest

Having the right to charge interest on late payments is a powerful tool to encourage prompt rental payments, as well as improve the cashflow of equipment lessors. Also, late payment interest is not enforceable if the interest is too high and is arguably a “penalty”, so equipment lessors need to be careful in how the late payment interest clause is written.

– Right to Enter Premises and Seize Equipment

We have been approached by several equipment lessors to help them sue their equipment lessees for late payment. In several of these cases, the equipment lessor simply “disappeared” after failing to pay rent for many months.

Had they come to us contracted based on a properly-written equipment lease agreement, they would have been advised to insert in the agreement the right to enter the equipment lessee’s premises and seize the equipment if the lessee failed to pay rent, and to more actively monitor the lessee’s payments.

This would have maximised their ability to recover the equipment early, and to reduce the trouble of having to locate their equipment, especially from distressed lessees.

 

Key terms in equipment-hire agreements

Apart from the three key terms mentioned above, equipment lessors need to make sure that the following key terms are included in their equipment lease agreement template:

– That the lessor is entitled to inspect the equipment.

This term ensures that the lessor is able to observe that the equipment is used and maintained by the lessee in a manner that does not breach the terms of the equipment hire agreement.

– That the lessee is restricted to using the equipment at a particular location.

This term ensures that the lessor knows where the equipment is.  This enables the lessor to exercise his right to inspect the equipment, seize the equipment or take the equipment back at the end of the rental period.

– That the lessor is entitled to rental as set out in a payment schedule.

This protects the lessor’s right to timely payment of rental by making it clear when and in what amounts of rent that the lessor is entitled to.

– That the lessor is entitled to a security deposit from the lessee.

A security deposit which is paid to the lessor by the lessee at the beginning of the hire period protects the lessor against unpaid rental payments and loss or damage to the equipment. Unpaid rental amounts or costs of repairing the equipment may be deducted from the security deposit for use by the lessor.

– That the lessee is under a duty to maintain the equipment in a good and usable condition.

This protects the lessor in ensuring that the equipment returned at the end of the lease in a good and usable condition, so that the equipment is still commercially valuable to the lessor. Where this term is breached, the lessor may deduct the equipment repair costs from the security deposit.

– That the lessee must indemnify the lessor for third party claims

As the owner of the equipment, a lessor may find itself facing claims from third parties arising from the use of the leased asset by the lessee.  This may potentially expose the lessor to financial losses and legal expenses, which it will want the lessee to be responsible for, since it is most likely that it is the lessee’s actions that have resulted in the claims. Having an indemnity provision makes it clear that the lessee is legally responsible for these third party claims, and must compensate the lessor for any losses and expenses it incurs.

 

Why I.R.B. Can Help

Our lawyers at I.R.B. Law are experienced in the commercial and legal aspects of equipment leases, and would be glad to assist your business:

– in preparing the right equipment hire agreement based on your business model,

– perform due diligence on potential equipment lessees, and

– enforcing equipment lease agreements and recovering unpaid rent and equipment,

to help you maximise your cashflow and profits, and arm you with remedies and solutions against defaulting or uncreditworthy equipment lessees.

If you would like to speak with us on your equipment lease business, please contact our commercial law partner, Bernard Chung, at [email protected].