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Does a tenant have a duty to occupy the leased space? No, not unless the lease requires it to do so. So, what should a lease say in that regard? We begin by contrasting two terms, vacate and abandon.
What does it mean to “abandon” leased premises? To abandon the leased space is for a tenant to relinquish its right or interest in the space with the intention of never claiming it again. Normally that requires an understanding of the tenant’s subjective intent, a very difficult “state of mind.” In some cases, however, that state of mind can be determined, such as when an entity tenant vacates the leased premises and is dissolved. Mere passage of time during a cessation of active use does not constitute abandonment. Although length of time is a factor to be considered, it is not the sole factor. Some discontinued uses are more readily revivable than others, and the passage of time must be considered in conjunction with all circumstances, including those that caused the cessation, the nature and quality of efforts being made to resume the use, and any other objective manifestations supporting or negating the owner’s expressed intent to continue the use. Further, just because a tenant ceases using particular leased premises does not mean that it doesn’t intend to find a subtenant for those premises. Thus, if a tenant is otherwise performing its obligations under its lease, a landlord under a lease lacking a definition for “abandonment,” applicable to the particular circumstances, is without the ability to terminate the Lease or recapture the space. [Read more…]
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A major supermarket, once the largest retailer in the United States, closed in bankruptcy after 156 years in existence. People much smarter and knowledgeable that we are could better explain the cause of its demise and, in hindsight, could explain how they knew, years and years earlier, it would happen. Ruminations can only offer that the facts and circumstances changed, but the company (meaning its people in charge) did not. But, this blog isn’t about history other than to use it as a platform upon which to stand when engaging in another fool’s errand – forecasting the future.
Groceries, sandwiches, ice cream, supermarkets, restaurants, department stores, variety stores – oh, the words we use, what do they mean? Today, we revisit one of our most-read blog postings because a federal appeals court revisited the underlying case (again). We’re “talking” about the Winn-Dixie case. Our “take” on that underlying case can be read by clicking: 
It’s been a thousand or more leases since Ruminations did any serious thinking about the intersection of exclusive use restrictions, radius clauses, and their respective lawfulness. This isn’t a current topic of discussion in leasing circles, though it certainly was 40 to 50 years ago. Yes, there is comfort in knowing that, with the passage of time, we aren’t seeing the “anti-trust” or “unfair methods of competition” armies marching into the shopping center arena. That is, possibly, until now.
Blame Amazon! That’s not a new approach. William Shakespeare wrote it in Julius Caesar, Act I, Scene III, L. 140-141: “The fault, dear Brutus, is not in our stars / But in ourselves, that we are underlings.” [With apologies to genuine literary critics, all of whom should disagree with our misappropriation of the Roman nobleman, Cassius’s intent in his choice of those words.]
We are aware that in New Jersey, if a lease doesn’t denominate a particular tenant’s financial obligation as some version of “rent,” then the landlord can’t get the tenant evicted for non-payment of that item. The reason we are aware of this is because we’ve seen case law that denies a landlord such relief. While the landlord can sue to collect such charges, for example, common area charges, it can’t evict the tenant if the lease doesn’t say that such charges are “rent” or “additional rent.” It doesn’t matter that Ruminations thinks that’s just plain silly. That’s the way it works even if everyone other than the court knows that such items are part of a tenant’s rent.
Today, we offer a potpourri of rants: the doctrine of impossibility; good faith and fair dealing; and why did you think you could get away with that?
We think too much time has been wasted over the issue of “internet sales” in the context of percentage rent. A long time ago, Ruminations shared some thoughts about the principles behind what should and what shouldn’t be treated as part of a tenant’s gross sales for percentage rent purposes. That blog posting can be seen by clicking: 
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