Ensure however that the landlord has not inadvertently already granted a similar right of exclusivity to another tenant.  That happened in a recent High Court case where sole rights to trade as a pharmacy were granted firstly to an existing pharmacy, then to a supermarket chain in the same complex, and finally to a new owner who had bought the existing pharmacy’s business. 

Whose sole right was valid?  Critical to the Court’s decision in favour of the supermarket chain was the old legal maxim “he who is prior in time is stronger in right”.  Unfortunately for the purchaser of the existing pharmacy, it had concluded an entirely new lease with the landlord, replacing the original lease.  And since that new lease was dated after the supermarket’s lease, the supermarket had the prior right.

The buyer of the pharmacy would have been in the stronger position had it, instead of entering into a new lease with a new exclusivity clause, rather structured its purchase and lease agreements so as to take cession from the original owner of its original rights to exclusivity.  It would then have been “prior in time”, and its claim would have trumped that of the next tenant in line – the supermarket.