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Tenant Concerns When Drafting Accessibility and Visibility Protection Provisions
Often in leases, particularly retail leases, the tenant seeks to protect the accessibility and visibility of the area immediately in front of its store location. For that purpose, landlords and tenants create language that prevents the landlord from placing any retail operation, structure or obstruction in front of the tenant's store within a certain number of feet or a designated area in the common area (often referred to as a “Restricted Area”). However, very often due to the vagueness of the language included in this type of a provision, as well as due to the limited nature of remedies available in this type of a provision, the tenant does not receive the type of accessibility and visibility protection that it thought it had negotiated. As a result, tenants should consider the following factors when negotiating accessibility and visibility protection provisions in their retail leases: (i) include a picture or site plan designating the “Restricted Area”; (ii) identify any specific remedies attributable solely to this provision; and (iii) limit competing uses for stores in the Restricted Area, if the existing retail tenants in the Restricted Area ever relocate from their existing locations or vacate the retail facility.
Site Plan or Picture
As attorneys and leasing representatives seek to conform documents and to reach agreement regarding acceptable language for the restrictions that will be placed upon the landlord in the placement of retail tenants, structures and obstructions in the common areas, often the “reality” of the individual retail facility is overlooked. For instance, a landlord may agree not to place any structure within 15 feet of a tenant's premises, only to discover that there are plantings or a directory sign 10 feet in front of the tenant's premises. Moreover, a tenant may agree that any existing tenants or structures located in the “Restricted Area” as of the date of the Lease are exempted from the provision. However, the tenant may be disappointed to learn that between the time that the lease was negotiated and the time the lease was signed, the landlord permitted a cart to be located within 10 feet of tenant's storefront.
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