Restrict Tenant's Use of Supplemental Security Measures

The number of violent crimes taking place at public venues in recent years has skyrocketed, with the Oct. 1 mass shooting of concert-goers in Las Vegas being the biggest attack in United States history. Owners of public spaces are reevaluating their security, some by asking outside security firms to review their security systems and make recommendations for improvement.

Both tenants and their customers and employees are vulnerable if they set up shop or work at a shopping center. But what if you own a smaller center or a mall that’s struggling to turn a profit and can’t hire a large security team or install a state-of-the-art security system? Is it a good idea to allow tenants to supplement your security measures with their own, if they’ve requested to do so? Or should you turn down those offers and make the best with the team you have?

The key is to negotiate limits on a tenant’s supplemental security measures so that it makes your team’s security plan easier, not more difficult, to carry out. It can be easier than it seems to work with the tenant to protect everyone’s interests in your scenario. Here’s what you need to know when negotiating with a tenant that wants to use its own security as well as yours.

Courts Ask if Crime Is ‘Reasonably Foreseeable’

It seems intuitive that, if an owner doesn’t provide adequate security at its center, it might be held liable for crimes occurring there. But in some relatively surprising cases courts have ruled that owners who used a single security guard or minimal security system to protect very large retail properties weren’t liable for violent crimes that took place there.

The key question of those cases was whether the shooting was “reasonably foreseeable” by the owner. That is, if the owners could have predicted that such an event could happen, they were at fault for not providing security commensurate with that type of event. Another crux of the case was past criminal issues at the properties. Before any particular major incident, was criminal activity of a petty theft nature and hadn’t there been any incidents involving a gun at the properties? If anecdotal evidence showed that nonviolent crimes were the norm, a shooting wasn’t reasonably foreseeable in some of the cases. Ultimately, some courts have determined that a center or mall owner couldn’t be held civilly liable for a shooting rampage because the crime wasn’t reasonably foreseeable. But simultaneously, courts and victims have harshly criticized small security plans, noting that the use of only one guard or a few cameras for large properties indicated that the owner hadn’t been appropriately concerned about crime.

As an owner, keep in mind that shockingly inadequate security can not only create potentially fatal situations, it can also give you a bad reputation or make tenants hesitant to rent space and customers skittish about shopping there. Even if a legal trend is to not hold owners liable in all cases, it’s always better to err on the side of providing more, not less, security.

Include Seven Points When Allowing Tenant’s Security

A plan for hiring and relying on only your security team and equipment has strengths and weaknesses—for example, you might be short on resources, but you’ll have full control of the system and not have to worry about tenants’ efforts interfering with yours. But if your plan isn’t as strong as you want it to be, and a prospective tenant tries to negotiate a right to provide its own security, you can meet this challenge of working productively with the tenant to come up with a complete security plan by including these points from our Model Lease Clause: Control Tenant’s Right to Install Security Measures.

Point #1: Make sure other key lease clauses apply. Certain key clauses in the lease—such as the alterations clause and any clause governing the security you’ll provide—may limit the security measures the tenant can install and use in its space. Make sure the tenant’s right to install supplemental security measures is subject to those key clauses. Otherwise, you could lose control over what the tenant can put in its space. To make sure those key clauses and any limits they contain apply, say in the lease that the tenant’s supplemental security system clause is “subject to” the key clauses [Clause, par. a].

Point #2: Require your approval. Require the tenant to get your approval before it installs any supplemental security measures [Clause, par. b]. This way, you can control the times, place, and manner of the installation.

Point #3: Bar measures that interfere with your security. Bar supplemental security measures that may interfere or be incompatible with the security measures that you or any other tenants have installed at the building or center [Clause, par. b]. Otherwise, you could be exposed to liability if the security measures conflict.

Point #4: Bar armed guards. Don’t let the tenant bring armed guards into your building or center or into its space [Clause, par. b]. If you let guards with guns walk around your building or center, you’re asking for trouble. Allowing guns at a building or center may create unexpected liability. Also, the presence of armed guards in a building or center creates an air of fear among visitors and customers.

Point #5: Require cooperation. Require in the lease that if the tenant installs supplemental security measures, it must cooperate with you in coordinating your respective security roles. Also require the tenant to help you develop procedures so that the tenant’s security measures run effectively and efficiently with your security measures and those of your other tenants [Clause, par. c].

Point #6: Make tenant responsible for installation and costs. Require the tenant to be responsible for installing, maintaining, repairing, and replacing the supplemental security measures. And make the tenant responsible for paying all installation, maintenance, repair, and replacement costs [Clause, par. d]. You shouldn’t be responsible for any of those obligations or costs.

Point #7: Bar liability and responsibility. Place all responsibility and liability for the supplemental security measures on the tenant. To do that, make the tenant agree in the lease that you’re not liable or responsible for ensuring that its supplemental security measures run effectively. Require the tenant to release and indemnify you from all claims relating to its supplemental security measures [Clause, par. e]. This means that the tenant must reimburse and defend you if a third party sues you because the tenant’s security measures weren’t effective.