Earlier in my legal career I worked with a large law firm representing a popular and rapidly expanding restaurant chain; those years afforded me a baptism by fire in the negotiation of restaurant leases. It may be related to those early years fighting for the big chain tenant, or maybe its because I spend so much time enjoying and relaxing in restaurants around Denver, but, I've always enjoyed working on restaurant leases. In the universe of lease agreements, they are almost always the most interesting. Since I just finished one up, this seems like a great opportunity to kick off a series of blog posts focusing on restaurant leases and issues tenants need to know about, especially new owners and entrepreneurs without a lot of leasing experiences.
The issue of exclusivity is often at the center of restaurant lease negotiations. In shopping centers or other multi-tenant environments, tenants should try to lock down assurances they will not face harmful competition from other tenants. The easiest way to do that is to include an exclusive use clause in the lease. Its best if the broker helping a tenant find a space sets the expectation that exclusivity is a part of the deal by including the concept in the letter of intent (LOI). In most cases, landlords and tenants agree on a non-binding LOI laying out the basic terms of the deal before proceeding to draft and negotiate the lease document. So, what level of competition is actually "harmful?" In shopping centers or other retail settings with multiple buildings, tenants should consider whether an exclusive within the building their space is located in is sufficient, or is an exclusive covering the entire retail center appropriate? Further, many retail centers are governed by CC&Rs or Declarations and in such cases, its important to confirm nothing in those documents limits the new tenant's plans for its space or grants another tenant an exclusive use pre-empting the tenant's planned use. Restaurant tenants should also carefully consider the nature and scope of the exclusive rights they desire; does the tenant want to be the only restaurant in the building/center or, is it acceptable (or even better) for them to allow other restaurants users so long as they have exclusivity based on certain food types (for example, Mexican food) and/or operational type (for example, fast-casual versus a sit down, full service restaurant with table service)? Does the tenant want to be the only fast casual restaurant in the building serving alcoholic beverages? A properly drafted exclusivity clause is very specific and leaves no room for argument or interpretation. With respect to restaurants and bars, different types of operators can often co-exist and feed off of one another (no pun intended!) quite nicely, so it might not necessarily behoove one to be the "only" restaurant in a particular setting. While thinking about exclusivity clauses for restaurants in multi-tenant settings, one frequently overlooked point is signage on the exterior of the premises; depending on the situation, it may be important for tenants to lock down the exclusive right to display their signage on the exterior of the space.
Another important consideration for restaurant tenants negotiating exclusive use clauses is the practical effectiveness of these clauses. Often tenants focus on obtaining the exclusivity language they need but neglect addressing how they'll actually enforce that language if the landlord disregards it, or if another tenant disregards it and assigns or sublets their space to a competing business. In addition to the exclusivity clause, its a good idea for tenants to try to push for language discouraging landlords from ignoring the exclusivity restrictions and also requiring them to take action in the instance of renegade tenants. There are several ways to do that, including expressly providing that a tenant may pursue equitable remedies such as an injunction or even granting the wronged tenant a substantial rental reduction or abatement during the period their exclusive use protection is compromised. If unaddressed, a tenant may be left with no recourse except for an expensive lawsuit against a landlord who may have deep pockets. A tenant's ability to obtain adequate exclusivity protection is often proportionate to their bargaining power with respect to the landlord (is the tenant a highly desirable addition to the center?) and other tenants, and is also related to how the desired protective language relates to the overall negotiation of the lease.
Next time this series of posts will address building out restaurant lease spaces and common issues surrounding landlord and tenant construction obligations. Until then, contract safely and remember, everything is negotiable.