Month: October 2017

Quick Leasing Advice, Sophisticated Deal Terms: EXCLUSIVE USE PROVISION

My name is Maheen Akhter. I love what I do, and I would love to bill you for it, but prior to doing ANY of that, I just want to equip you with knowledge, so you can ask for the right things, know what is going on, understand the traps, and JUST DELETE THE NONSENSE. 

Have you ever wondered why when there is a new Starbucks in  a plaza, no other coffee shops seem to be near? or how if a Starbucks does come near an old coffee shop in a plaza, no new coffee shops ever enter that plaza after a Starbucks appears? Well it’s because there is an exclusive use provision has been added to the lease. Such provisions generally reads like this:

Exclusive Use. To induce Tenant to execute this Lease, and subject to all of the terms and provisions of this Section, Landlord covenants and agrees that neither Landlord nor any affiliate of Landlord shall lease or rent any premises in the buildings known as West Ferry Plaza, generally located at [provide address] to any new tenant (including, without limitation, any assignee, sublessee, licensee or other occupant of such new tenant) that operates a Competing Business (as hereinafter defined) without Tenant’s prior written consent, which consent may be withheld in Tenant’s  sole and absolute discretion. “

In an ideal world you can define “COMPETING BUSINESS” to mean any business that is primarily in the business of selling coffee, so you are not excluding grocery stores, or other stores that are not directly competing with you & actually funnel customers your way.  In order to effectively make sure you are excluding the right type of businesses, you  may consider saying something like, “obtains 50% of its revenue from coffee sales.”  You also may use these sorts of modifications to strike a deal with your potential landlord as well.

 What if you have an exclusive use clause in your lease, but it’s vague? The general rule in some states  requires that language of exclusiveuse clauses should be narrowly construed, and all doubts should be resolved against a possible construction that would increase the restriction upon the use of real estate.

  What if the Landlord breaches the “Exclusive Use” provision? 

  1. Option to terminate the lease, and receive damages  (maybe you and the Landlord prenegotiate what  these damages look like?)
  2. Option to terminate and receive a refund all monies spent on Tenant Improvements, along with the cost to relocate, and any fees paid by the tenant to a broker to find a new space.

I will tell you this-if your ONLY REMEDY is to terminate the lease, courts usually feel like that is not a true remedy. Terminating the lease and giving up your business location and the investments made in improvements would not provide any benefit or remedy to you. You could  argue that the remedies clause is unenforceable because it fails its essential purpose. A similar argument was made in Simon Prop. Grp., L.P. v. Kill, 2010-Ohio-1492, 47, and the court sided with the Tenant.

I  am trying really hard not to ramble, so that you’re some what interested in using this clause in the next lease you enter into. I know, I use “coffee shop” as my example, but this is an excellent provision to have in ALL leases, including medical spaces, book stores (ha- is that even a thing?), sandwich shops, spas, grocery stores, dry cleaning, nail salon, veterinarian clinics, etc.

Good luck.







Quick Leasing Advice

I ABSOLUTELY LOVE new businesses coming into town. Who doesn’t love a new Thai restaurant opening up around the corner, a taco stand or a full fat ice cream place? But, unfortunately according to Bloomberg, 8 out of 10 entrepreneurs who start businesses fail within the first 18 months.

You’ll never know unless you try, but if you try you may end up putting yourself in financial risk that will take a minute to get out of, and it may affect your family’s livelihood in profound ways  (like you may have to declare bankruptcy – I’ve unfortunately seen this consequence first hand through a family friend who had a having a thriving business that grew faster than the demand).

You should not let failure stop you, but you have to be mindful of it and protect yourself from its consequences. As an attorney who represents developers, I see entrepreneurship first hand, and I also know that many first time business owners leasing spaces DO NOT USE ATTORNEYS.

I totally understand. Not going to judge you. Although, I would LOVE having my own client base, I LOVE seeing fairness in a deal. I also hate one-sided deals, it makes me feel uncomfortable and it doesn’t settle well with my conscience.

I know when you are entering into a deal everyone is nice, but just remember, when a deal  goes south, people are not so kind. So, below is a list of quick things you can do to protect yourself from getting screwed if you decide NOT to use an attorney:

  1. INITIAL TERM AND OPTIONS FOR ADDITIONAL TERMS. Keep your initial term somewhat short, like 5 years, then have options to extend that can ONLY be exercised by  YOU (the tenant) prior to the  initial 5 year term expiring (i.e. three 5 year options to extend). This is important, because often when a term expires a landlord tries to  use this as leverage to increase rates that DO NOT REFLECT market rates, because they know you are invested in the location, you have have spent money improving the space, and you are most likely just going to have to agree to it.  (PUT THIS POINT IN YOUR LETTER OF INTENT)
  2. LIMIT THE PERSONAL GUARANTY. So you’re smart enough to make sure you’re leasing the space with an LLC, but then you are dumb enough to sign YOUR OWN NAME for the “guaranty” for the full lease term. Limit that SH*T.  Seriously. Get creative.  Maybe you have a personal guaranty that lasts for half of the term  or limited to 6 months rent, or after 3 years the guaranty disappears. JUST GET CREATIVE – Google the creativity my friends.
  3. COMMON AREA MAINTENANCE CHARGES. Who is paying for what? YOU SHOULD NEVER BE PAYING FOR LANDLORD’S CAPITAL IMPROVEMENTS, or paying for things that the landlord will be reimbursed for at a later date. It makes sense to pay for your portion of property taxes, electricity, heating, etc., but it doesn’t make sense for you to be paying for repairs to your roof, or a brand new HVAC system six months before your term ends.
  4. DEFAULT. MAKE SURE YOU HAVE A CURE RIGHT. If you’re late on a payment, or accidentally use the sidewalk to set up a table with some sample items, you do not want to trigger an automatic default. What  you do want it to trigger, is the right of the Landlord to notify you of such issue, and the ability to cure a monetary default within 10 days of receiving notice and all non monetary defaults cured within  30 days of receiving notice.  An automatic default means the Landlord can terminate your lease, and you could, in some instances, be liable for the total rent due for the remaining term.
  5. LANDLORD DEFAULT. What happens if you contact your Landlord about your broken HVAC system – and he does NOTHING? Well in this instance you want the ability to cure the problem if landlord fails to address the problem within 15 days, and you want the right to deduct such cost from you rent with proof of payment.  Go over this concept with your landlord, I’m sure their attorney will be happy to assist incorporating such concept in your lease.
  6. NOTICES. THIS SEEMS LIKE A DUMB POINT, but man, the way notices need to be sent is an important thing. Is sending it by regular mail OKAY? or do you need to send it priority overnight via national known carrier, like FEDEX or UPS? You would hate to be that person who  emailed your landlord your election of extending the term, but your landlord using the notice provision against you, in order to “negate” your extension, since you failed to follow the notice provision in your lease (THIS HAPPENS IN REAL LIFE PEOPLE).
  7. INSURANCE AMOUNTS. Most landlord’s are flexible with these amounts – talk to your carrier and discuss the minimum amounts that need to be carried with the landlord.
  8. CONFIRM ALL NUMBERS. Run all $$$ yourself. Just do it. Anyone can make a mistake.

I obviously have a whole list of other changes I could recommend, but these are the KEY POINTS to focus on when you’re entering into a lease and beginning (hopefully) a long term relationship with your landlord.


Maheen Akhter, ESQ.

GA & MO barred.

The above is not intended to be legal advice – but merely things for you to consider and share with those around you entering into a lease.


Do people write love poems to their lovers? Is this a thing?

Well my husband and I wrote each other poems. They aren’t at Maya Angelou level, but they are much sweeter to me, since they were written from my heart and to my heart 🙂

From my husband:

“oh maheen joe, don’t you know


that you are the one for me.

with every breath that i breathe

i think about our kisses


and that you are my misses


and you keep me warm


and every morning i am torn


when i have to leave


but i still think about you, with every breath that i breathe”



Here was my poem:

“to my joe
my favorite saqib joe
Allah blessed me the day you stepped into my life
and i became your wife
everyday i smile
even though work is bile
because with you by my side 
I don’t have to hide
kiss me my joe
my saqib joe
I am yours forever 
in the hereafter 
and with so much laughter
i love you saqib jho.”