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Reasons to Reevaluate REAs

By Sheldon A. Halpern

Reciprocal Easement Agreements (REAs) among one or more developers, department stores, and, in the mixed-use context, owners of parcels devoted to non-retail uses, have rarely been formulaic. The initial draft typically takes into account site-specific requirements and the known requirements of the parties. It reflects any available business term sheet and often utilizes as a template a document previously agreed to by some or all of the parties. It is usually vigorously negotiated over a substantial period of time. However, a substantial portion of the business and legal negotiations frequently occur at or near the margins. Historically accepted norms as to the primary provisions are not frequently controverted.

This article raises the issue of whether it is now appropriate to reevaluate some of those primary provisions ' both business and legal. It focuses on REAs involving department stores, but many of the issues raised will be applicable to REAs involving other types of anchors and also to leases with both department store and other anchor tenants.

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