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Top Ten Issues in Co-Tenancy Provisions in Retail Leases
As many real estate professionals are aware, the co-tenancy provision is one of the more heavily negotiated clauses in a retail lease. A co-tenancy provision permits a tenant to exercise remedies if certain conditions are not met with respect to the shopping center in which it is located. As discussed below, co-tenancy provisions can be tied to the existence of certain “key” tenants, to an occupancy threshold based on a percentage of total tenants, or to a square-footage number.
Tenants want co-tenancy provisions, which may relieve them from being obligated to open, pay full rent or operate in a shopping center that is not fully occupied, to provide for a remedy in the event that the synergy of the applicable shopping center is affected. Landlords dislike co-tenancy provisions because: 1) they cannot control the actions of other tenants or occupants in the shopping center; 2) they feel that a certain amount of vacancy is unavoidable; and 3) their rent stream from the shopping center can be severely impacted. This article briefly discusses the top ten issues in co-tenancy provisions in retail leases.
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