Contact Us
Phone: (213) 459-2200
Location
2029 Century Park East
Suite 400
Los Angeles, CA 90067
Hours
Call Now: (213) 459-2200
Traditionally, non-compete clauses in things like employment agreements are designed to protect trade secrets. The idea behind non-competes is that they stop employees from leaving and taking business secrets to then compete with and beat the companies they leave.
However, the Biden administration signed an executive order in 2021 that limits or bans these worker-specific non-compete agreements. Now, this is a problem because businesses legitimately rely on keeping their “competitive edge.”
But, what about non-compete clauses in commercial lease agreements? You may not have even known that there are non-competes present for commercial lease agreements, but the idea is much the same — to protect and preserve cross-competition in retail or business spaces.
Right now, the practice with non-compete employment clauses is that a former employer with an enforceable non-compete contract can use the courts to enforce this clause. They don’t even have to prove that the former employee is actually using any of the information they learned or took anything.
Is that the same for commercial lease agreements? In this article, you’ll learn more about the scope and purpose of non-compete clauses in commercial lease agreements and whether they’re as enforceable as business-related non-competes.
Non-compete clauses in commercial lease agreements are contracts with terms that promote business operation exclusivity. When it comes to commercial lease agreements, these clauses stipulate that only one kind of business can operate within that space or complex.
For example, if a tenant operates a nail salon, a non-compete commercial lease agreement for that block of units or building means no one else can set up another nail business.
And, depending on the terms or the specifics of what “similar” businesses are defined as in the contract, no one else may be able to open a similar type of business either, such as a spa.
However, there’s a converse effect on too much specificity. If you define every possible situation, you risk restricting and then stifling healthy business diversity.
So, for example, there’s no reason why a psychotherapist can’t operate in the same building or block of units as a dermatologist because their target customers are entirely different. They’re both medical specialists, but they offer different services. Keep this in mind when having your attorney draft a non-compete clause in your commercial lease agreement.
It’s clear why a tenant of a retail use space or property might demand a non-compete clause in their contract with a landlord. But does that benefit go both ways?
The answer is that it does. First off, let’s consider what a tenant might gain from non-compete clauses in commercial leases:
The benefits to landlords are just as strategic — if not always immediately obvious.
Non-competes in commercial agreements are absolutely enforceable — in fact, they’re as enforceable as any other clause in a contract that two or more parties enter into willingly.
However, it’s not a question of enforceability but the specifics of contract language that can make it tricky or even unclear as to who has a legal claim for financial relief or damages that could come from violating a non-compete clause.
Here are a few examples of this issue in action.
Let’s say a store selling health food products opens up in a shopping center. The landlord agrees to a non-compete with the health food store owner — no other business selling health foods, supplements, and the like can establish themselves in that space.
However, there’s also a gym in that same plaza. Initially, this was great for the health food store because they had natural customers and there was a symbiotic relationship between the two businesses. Down the road, the gym decides to start selling their own proprietary health supplements — is this a violation of the non-compete?
The enforceability of this situation would really depend on how the non-compete clause was drafted. Generally speaking, yes, the health food store would have a viable legal claim against the gym — but also against the landlord. Yet, it would take an experienced attorney well-versed in real estate law to be able to compare both contracts — the landlord’s contract with the gym and the health food store.
Another instance is restaurants. There’s a lot of room for ambiguity and disputes when it comes to non-compete clauses for food chains, franchises, etc. That’s because of consumer behavior — for example, consumers may like getting to go to just one block of units and access multiple options for lunch. One individual may like salads and the other pizzas.
Are the two necessarily in competition? It’s not black and white because consumer food preferences vary. Now, what if the salad spot offered mini pizza snacks? Or the pizza place started doing side salads as part of their combos?
In cases like this, you need careful, specific drafting that accounts for consumer preferences and behaviors while also ensuring that businesses aren’t running in conflict with each other. So, the level of enforceability and the amount of relief one tenant can legally seek from the other will differ from contract to contract. They may also seek other rights or compensation, like the right to break a lease.
At the end of the day, even taking a contract to the courts for enforcement will expose you to the same process — a judge will still have to parse the contract language of the leases to determine whether the law covers the suit being filed.
Contact us now!
By submitting this form, you agree to be contacted by our law firm, either by phone, text or by email.
Saturday By Appointment
Disclaimer: No information you obtain from this website or its content is legal advice, nor is it intended to be. You should consult an attorney for individualized advice regarding your own situation. No attorney-client relationship is intended or formed by your viewing this website or downloading and using the content, forms, tips or information kits found on this website. No attorney-client relationship is intended or formed without a fully-executed, written agreement to enter into such a relationship. Client testimonials or endorsements do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
All Rights Reserved | Wick Legal Group | Powered By Convert It Marketing | Privacy Policy
All Rights Reserved | Wick Legal Group | Powered By Convert It Marketing | Privacy Policy