Don't Rely on Implied Continuous Operations Covenant

Don’t rely on an “implied” continuous operations covenant—that is, one that isn’t expressly stated in the lease—if you want your retail tenant to continuously operate from its space. Some courts might find that one exists anyway in certain situations, such as when the lease requires a long-term tenant to pay a minimal base rent but substantial percentage rent, limits the tenant’s use and ability to assign and sublet, and bars competition.