Exclusive Use and Go-Dark-and-Recapture Clauses

In a previous post, I discussed the differences between go-dark and go-dark-recapture clauses in a commercial lease. I noted that including either clause in a lease opens the door to several other issues, including the interplay with an exclusive use clause. If you are a commercial landlord and agree to grant an exclusive use clause to a tenant, I suggest giving serious consideration to pairing the exclusive use clause with a go-dark-and recapture clause.

For example, consider the situation in which a landlord grants a large chain bookseller in the shopping center an exclusive for retail sales of new and used books. If the bookseller decides to shutter this particular location but otherwise keep the lease active (which could occur for various reasons, as discussed in my previous post), the landlord not only has an empty space in the shopping center, but the exclusive prevents the landlord from placing a competitor bookseller in another space in the shopping center to replace the bookstore traffic. If the landlord had a go-dark-and-recapture right, however, if could terminate the bookseller’s lease and move in a new tenant.

The abilities of a tenant to obtain an exclusive use clause and a landlord to obtain a go-dark-and-recapture right depend on the bargaining power of each party, but a commercial landlord would be prudent to consider them both together.