Exclude Future Anchors, Big Boxes from Tenant's Exclusive

If you give a tenant an exclusive, make sure that, in addition to excluding existing tenants from the exclusive, you also exclude future anchor and big box tenants, as well as any outparcels at the center that you don't own or control, say Denver attorneys Bonnie Larson-de Paz and Neil B. Oberfeld. Otherwise, you could easily end up violating the tenant's exclusive.

Anchor and big box tenants may refuse to abide by any other tenant's exclusive, says Larson-de Paz. And because they often have broad use clauses in their leases, they could easily change their use to one that violates the tenant's exclusive, she warns. Also, you may be unable to limit what outparcels at your center that are owned or controlled by other entities can do or sell, Oberfeld adds. You need to carve these outparcels out of the tenant's exclusive because they could change their use or start selling merchandise that violates the tenant's exclusive. And you could be powerless to stop them.

CLLI Sources

Bonnie Larson-de Paz, Esq.: Shareholder, Isaacson Rosenbaum P.C., 633 17th St., Suite 2200, Denver, CO 80202; (303) 292-5656; blarson@ir-law.com.

Neil B. Oberfeld, Esq.: Shareholder, Isaacson Rosenbaum P.C., 633 17th St., Ste. 2200, Denver, CO 80202; (303) 292-5656; noberfeld@irlaw.com.