Granting a tenant an exclusive use of their premises in a retail
setting can be a powerful inducement to have the tenant agree to a
lease. There is little doubt, however, that the use of exclusives
often leads to eventual litigation unless the exclusivity is well
defined and enforced.
Take the example of granting the right to be the exclusive
Chinese restaurant in a shopping center or mall. A year or two
after the lease is signed a Vietnamese or Thai restaurant opens in
the same center and includes on their menu some recognizably
Chinese dishes. Is this a violation of the exclusivity originally
given to the Chinese restaurant tenant? It could be. But
anticipating such a conflict would have allowed some limitations on
the definition of "exclusivity" in the Chinese restaurant
lease, or could have created language in the Vietnamese or Thai
restaurant leases which strictly forbad recognizably Chinese dishes
on the menu.
