Today, most large tenants and many small tenants require that their core business be protected in a power or community shopping center by obtaining an agreement from the landlord that grants the tenant the exclusive right to sell the items considered by that tenant to be its core business. This “exclusive” is considered sacrosanct by most retailers and, in most circumstances, will need to be agreed to by a landlord in order to consummate a lease with that tenant.
In addition to considering the particulars of a given exclusive use provision, landlord’s counsel needs to consider the effect a given exclusive use provision will have on existing tenants and the leasing of the balance of the shopping center, as well as how all of the exclusive use provisions, when taken together, will interact with one another. These considerations are especially critical when the landlord is “leasing-up” a new shopping center where the landlord expects to enter into multiple leases over a relatively short period of time. This article describes some of the main points that landlord’s counsel should consider with respect to exclusive use provisions when handling the leasing of a new power or community shopping center. These main points are: