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A Tenant's Perspective on Co-Tenancy

By Glenn A Browne

In order to protect against a shopping center becoming less populated with retail department stores or so-called 'anchor' tenants, tenants will request, and frequently obtain, co-tenancy provisions in their lease documents. While the
co-tenancy provisions will vary from tenant to tenant, most co-tenancy provisions will at least protect the tenant from 'anchor' stores ceasing to operate (i.e., 'going dark') and from a certain percentage of 'in-line' tenants being closed for business. However, the co-tenancy provisions are often very vague as to how a landlord will be deemed to have cured a situation where an anchor store has closed for business. As a result, the following issues often are not addressed in the lease: 1) Does the entire anchor tenant space that has closed for business need to be leased and open for business in order to cure the co-tenancy condition; 2) Can the space previously occupied by the anchor tenant be occupied by a mixed-use of tenants in order to cure the co-tenancy condition; and 3) Are there any restrictions on the type of replacement anchor tenant that can open for business and cure the co-tenancy condition?

Amount of Space to Be Leased
To Cure a Co-tenancy Condition

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