Owner Entitled to Restrict Tenant's Access to Space

Facts: A retail tenant sued Burbank Mall Associates on the basis of unjustified delay in turning over the keys to the premises. The trial court ruled in favor of the owner.

At trial, the retailer's regional manager testified that on several occasions between July and September 2006, she asked the owner's operation manager for keys to the premises but was told that she would not be given keys until the tenant submitted—and the owner approved—tenant improvement plans for the space. Nevertheless, the tenant was given access to the premises, through the center's office, and only when accompanied by the owner's staff.

The trial court ruled in favor of the owner, and the tenant appealed.

Decision: The appeals court upheld the trial court's decision of the trial court and ruled against the tenant.

Reasoning: The tenant claimed that the owner's delay in delivering the keys denied “unrestricted and exclusive” possession of the premises for a period of about two months. Tenant also claimed that the delay caused it harm because it could not start construction earlier. But the court found no evidence in the record that the owner's refusal to deliver the keys to the tenant prevented the tenant from commencing construction. Rather, the court said, it appears that construction was delayed due to the tenant's failure to (1) obtain the owner's approval of construction plans; and (2) submit proof of its contractor's insurance.

• Burbank Mall Associates, LLC v. Georgiou Studio, Inc., February 2009