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It's Just a Phase: Issues and Answers for Landlords When Phasing a Project
In today's larger community centers, the developer is often faced with the need to construct the shopping center in phases, either to ensure adequate tenancies before undertaking the next portion of the center or to negotiate a sale of a portion of the shopping center to a large department store user who has its own agenda on when to construct its store. In either case, it is necessary for the developer to address the construction timing of the various phases and to deal with the issue of whether certain phases will be built at all. This article focuses on certain provisions the landlord needs to incorporate into its leases to protect itself in these situations.
The threshold concern relates to the possibility that a particular phase, or portion of the shopping center, may not be built at all. Perhaps the landlord hits a snag in its leasing program, and the lease it is negotiating ends up being one of the relatively few leases in the current phase. Perhaps the landlord has difficulty obtaining a construction loan and decides to forego the phase that contains the lease in question and concentrate on filling up another phase in order to reach leasing requirements imposed by the construction lender or permanent lender of the first phase.
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