The holiday season brings many desirable things to a retail center: a fresh holiday look, a sense of excitement and anticipation, and the most important thing — more traffic and customers. Along with these benefits, the holidays also bring retail owners some legal and practical challenges.

1. 12/5/2014 San Diego Source > Special Reports > The ghost of Christmas yet to come: Five holiday season tips for retail landlords
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NEWS | SAN DIEGO | REAL ESTATE
The ghost of Christmas yet to come: Five
holiday season tips for retail landlords
By Matthew J.
Marino, Allen
Matkins
Wednesday, October 29, 2014
Article Comments
RELATED SPECIAL REPORTS
Commercial Property ­2014
Trusted Advisers
Matthew Marino
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The holiday season brings many
desirable things to a retail center:
a fresh holiday look, a sense of
excitement and anticipation, and
the most important thing — more
traffic and customers. Along with
these benefits, the holidays also
bring retail owners some legal and
practical challenges. The primary
goal is to keep your center
running smoothly and profitably,
and forethought and preparation
may avoid not only some coal in
your stocking, but perhaps an
unanticipated legal problem or
lawsuit. Below are five tips for retail landlords and property
managers to consider as the holidays approach.
1. Where is Santa's Spot? Time, Place and Manner Policies.
Retail centers are always a focal point of expressive activities
by political groups, proselytizers, solicitors, and labor unions.
This is even worse during the holiday season, when bell­ringing
Santas and other attention seekers inevitably appear in
great numbers. While California law generally requires
commercial property owners to permit expressive activity at
retail centers (see Robins v. Pruneyard Shopping Center
(1979) 23 Cal.3d 899), owners may impose content­neutral
"time, place, and manner" restrictions on expressive activities.
By these rules, which can account for a center's unique
aspects and layout, owners can place reasonable restrictions
on speech, including advance notice of expressive activity and
controls on its location, volume, timing, and conduct. They are
a critical tool for owners to control such activities and may
permit owners to seek damages for violation of the rules by
disruptive conduct, as the Ninth Circuit recently held in The
Retail Property Trust v. United Brotherhood of Carpenters,
2014 U.S. App. LEXIS 18322. Well­crafted
policies
promulgated in advance may also prevent a lawsuit from
groups seeking to exercise free speech rights.
2. Holiday Crowds and Disabled Access Compliance. The
holidays normally bring a retail center a marked increase in
visitors, which may place a strain on facilities and resources.
It also increases the chance that a visitor may encounter a
barrier to access in violation of law. Store displays or aisles
redesigned or moved to accommodate holiday displays or
extra shoppers may impede disabled access. Failure to have
policies in place that ensure accessibility during the holiday
bustle, and employees trained to properly implement such
policies, may invite a claim that impermissible barriers exist.
Any such barriers to access may lead to a lawsuit. Drafting
and updating the center's access policies, and having counsel
or a Certified Access Specialist survey the center to confirm
compliance, can prevent headaches, complaints, and
unwelcome lawsuits when the calendar turns to the New Year.
3. O Christmas Tree? Holiday Displays. Large and elaborate
holiday displays and lighting are now commonplace, as retail
centers compete for shoppers' attention. Your hundred­foot
tall
red­nosed
reindeer might make Clark Griswold proud, but your
local municipality may not agree. Displays that do not comply
with local requirements may have to be dismantled or may
subject the owner to fines. Live performances may require
permits, be subject to additional regulations, or violate use
obligations or restrictions in various leases. Review all local
requirements that may be applicable, and check leases for the
scope of permitted activities. It is also advisable to confirm
whether the costs of holiday displays or advertising can be
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2. 12/5/2014 San Diego Source > Special Reports > The ghost of Christmas yet to come: Five holiday season tips for retail landlords
charged as common expenses and in what amount. The cost
of extra center­wide
advertising during the holidays is a
common dispute between landlords and tenants.
4. Temporary Tenants: Naughty and Nice. The holidays
frequently bring additional tenants seeking short­term
space for
holiday­themed
sales or services or to take advantage of
increased traffic. This provides landlords welcomed additional
revenue for previously unused space, but there are pitfalls for
the unwary. The inventory of short­term
tenants may infringe
on exclusive sales rights or interfere with tenant mix
requirements. Shared expense percentages may be affected.
Temporary structures may require permitting or interfere with
access obligations. Owners should consider all of these
issues and monitor existing lease requirements to ensure
short­term
occupants do not interfere with existing tenants.
5. Bob Cratchit's Day Off? Holiday Operating Hours. As retail
competition grows, the traditional "Black Friday" push has
become a race to open on Thanksgiving Day. "Day after
Christmas" sales have become "Christmas night" sales while
the figgy pudding still sits on the table. Although centers
generally strive for uniform operating hours, some tenants
might rather be closed during non­traditional
times. Each
particular lease will govern when and to what extent tenants
must operate, so landlords should be familiar with those
obligations to avoid an acrimonious or costly dispute. Irregular
or uneven tenant operations may also cause customer
confusion or animosity. Landlords should have a considered
plan regarding operating hours during non­traditional
times.
*****
Matthew J. Marino is a litigation partner in the San Diego
office of Allen Matkins. Matt's practice focuses on business
and real estate disputes, including landlord/tenant disputes,
unlawful detainer, property management issues, and
construction and condominium litigation. Matt can be reached
at (619) 235­1558
or mmarino@allenmatkins.com
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