Roof replacements, HVAC overhauls, and parking lot resurfacing are capital expenditures, not maintenance. When landlords bill them as CAM, tenants can recover the overcharge.
Check your own documents before you keep researching.
Find My OverchargesFind overcharges in your CAM reconciliation. Most audits complete in under 5 minutes.
Find My OverchargesSee a sample report firstOf all the overcharge types that appear in CAM reconciliations, capital expenditures billed as maintenance are among the most consistently identified by auditors and the most frequently litigated. The problem is not hidden, the amounts are usually large and the line item descriptions are there for anyone to read. What tenants lack is the framework to classify what they see.
A capital expenditure extends an asset's useful life or creates a new asset. Maintenance keeps an existing asset in its current operating condition. That distinction, rooted in both tax law and accounting standards, determines whether a cost belongs in the CAM pool or outside it. When a landlord labels a roof replacement "roof maintenance" and includes it in the reconciliation, the label does not change what the work actually was.
The clearest line between capital and expense comes from IRS regulations, which commercial lease drafters and auditors often reference even outside of a tax context. Under Treasury Regulation § 1.263(a)-3, a cost must be capitalized when it results in:
The "unit of property" concept is important. A commercial building's structural components, roof, HVAC system, elevators, plumbing, electrical, are typically treated as separate units of property for this analysis. When a major component of one of those systems is fully replaced, it is a restoration. Replacing a complete roofing system is not maintenance; it is capital.
IRS Revenue Procedure 2015-20 established a de minimis safe harbor allowing businesses to expense items costing $2,500 or less per item or invoice. Items above that threshold are presumptively capitalized unless they meet another exception. For the large-ticket items that appear in CAM pools, roof replacements costing $100,000 to $500,000+, HVAC overhauls costing $40,000 to $200,000, the de minimis exception does not apply.
Several mechanisms move capital expenditures into the operating expense pool:
Mislabeling on invoices. Contractors sometimes describe capital work as "maintenance" on invoices, either at the landlord's direction or as a default. The label on the invoice is not controlling, the nature of the work is.
Full inclusion in the pool year. The landlord incurs a $300,000 capital expenditure and includes the full amount in the CAM pool for the year it was incurred. Tenants' shares spike in that year.
Amortized inclusion. The landlord capitalizes the cost properly on its books but then amortizes annual amounts into the CAM pool. The CAM reconciliation shows "$20,000 capital improvement amortization" as a line item. This is an overcharge if the lease excludes capital expenditures, the amortized form does not transform a capital cost into an operating expense.
Bundling. The capital work appears as part of a larger maintenance contract that mixes routine maintenance with capital replacement. If the bundle is billed as a single line item, the capital component is hidden.
In Kmart Corp. v. Cragmere Associates, LLC (M.D.N.C. 2008), the landlord attempted to include full parking lot replacement costs as Common Area Costs under the lease. The court analyzed whether the replacement was a capital expenditure excluded under the lease's terms and recommended summary judgment for the tenant, the replacement was capital, not maintenance, and the lease excluded capital expenditures.
The case matters not just for its outcome but for its reasoning: courts examine what the work actually was (full replacement versus routine repair), what the lease's exclusion language says, and whether the landlord's characterization is consistent with how the same work would be classified under accepted accounting principles.
National Lease Advisors, a commercial lease audit firm, identifies capital expenses (roof replacements, HVAC replacements, elevator modernizations) as a common surprise finding in its audit work and describes seeing the issue "frequently." This is consistent with the broader tenant-advocacy literature, which treats capital cost pass-through as a top-tier audit target.
Cushman & Wakefield's lease audit guidance frames the issue directly: landlords often attempt to pass through "all capital expenses" in reconciliations, requiring tenants to scrutinize both the characterization and the lease authorization.
Roof systems. Full roof replacements on commercial buildings range from $150,000 to over $500,000 depending on building size and materials. These are capital expenditures under almost any accounting or tax framework, they restore or replace a major structural component and extend its useful life by decades. Routine repairs (patching, sealing, localized flashing work) are maintenance. The distinction between "repairing the roof" and "replacing the roof" is significant.
HVAC systems. HVAC maintenance, filter changes, coil cleaning, belt replacements, is clearly operating expense. Replacing a rooftop unit or overhauling the central plant is capital. Partial replacements of major components (compressors, heat exchangers) often fall in the capital category because they restore, rather than maintain, the system's operating condition.
Parking lots. Sealcoating, crack filling, and line repainting are maintenance. Full mill-and-overlay (removing the existing surface and laying new asphalt) is typically capital. Some courts have analyzed whether partial resurfacing qualifies as capital based on the percentage of the lot affected and the overall restoration effect.
The CAM reconciliation includes:
Total capital costs in pool: $637,000
Your pro-rata share is 4.5%.
Your share of capital costs: $637,000 × 4.5% = $28,665
That is $28,665 in recoverable overcharges for a single year, assuming your lease excludes capital expenditures, which most standard NNN exclusions lists do.
Now add amortization: even if the landlord amortized these costs over 15 years rather than expensing them immediately, the annual amortization amounts (roughly $42,467/year total) would still generate approximately $1,911/year in overcharges under your pro-rata share, continuing for 15 years.
Pull the CAM general ledger with full expense descriptions, not just category totals. Look for line items using words like "replacement," "installation," "new," "renovation," "system upgrade," or "overhaul."
Flag any line item over $5,000 with a description that suggests major work rather than routine maintenance.
Request invoices for flagged items. A contractor invoice for a "rooftop HVAC replacement" is more specific than a line item labeled "HVAC maintenance."
Apply the IRS restoration test: Did the work replace a major component of a structural system? Did it return a degraded system to working condition? Did it increase the property's value beyond its pre-work condition?
Compare to the exclusions list in your lease. If the lease excludes "capital improvements," "capital expenditures," or "costs of a capital nature," and the work meets the restoration or betterment test, the item is excluded.
Check for amortized entries. A line item labeled "capital improvement amortization" or "depreciation expense" that appears year over year is a clear signal that the landlord is running capital costs through the pool annually.
Some leases explicitly allow the landlord to amortize certain capital improvements and pass through annual amounts. If your lease allows this, check whether the specific items meet the criteria, for example, "capital improvements that reduce operating costs" or "capital improvements required by applicable law." Items that do not meet those criteria remain excluded.
A repair maintains current operating condition. A capital improvement creates new value, extends useful life, or restores function after major failure. Practical tests: Did the work affect the whole system or component, or just a localized problem? Did the contractor issue a warranty for extended useful life? Does the work appear on the building's fixed asset register?
The label does not control the analysis. What matters is the nature of the work. Courts have consistently looked past label misdescription to the substance of what was done and whether it meets the definition of a capital expenditure under the applicable accounting or legal standard.
The IRS de minimis safe harbor allows immediate expensing of items $2,500 or less per item or invoice (for businesses without an applicable financial statement). Above that threshold, capitalization is presumed for items meeting the betterment, restoration, or adaptation test. Large-ticket CAM items almost never qualify for the de minimis exception.
Code-mandated improvements are sometimes treated differently in leases that include "legally mandated costs" as a separate recoverable category. Check whether your lease has such a carve-out. If it does, code-required capital improvements may be recoverable even if ordinary capital expenditures are excluded. If the lease has no such carve-out, the exclusion applies regardless of why the work was required.
CAMAudit classifies each line item in your CAM reconciliation against the capital vs. operating expense distinction embedded in your lease's exclusion language. Large line items with descriptions suggesting major work are flagged for your review, with the IRS restoration analysis applied to determine the appropriate classification.
See also: The CAM Overcharge Detection Playbook, all 12 detection rules in one guide.
Related: Excluded service charges: other costs that come off your bill | Controllable expense cap violations