Retail leases generally have an obligation on the tenant to keep open and trading. That obligation can be enforced by an order of specific implement, also known as specific performance, or by interdict.

Specific performance can force the tenant to trade in accordance with the keep-open clause. Interdict can prevent the tenant from vacating the premises.

What is open?

To open the doors of the store won't always be enough to satisfy the keep open obligation. Recently we were successful in a keep open action where the tenant had partitioned off part of the store and reduced its trading to a single shelf. This was held by the court to be in breach of the tenant's keep open obligation under the lease, even although the store was technically "open".

When should you consider raising an action?

The sooner the better.

You can apply for an interdict to stop the tenant leaving if you raise the action before they leave.

Once the tenant has gone, you are unlikely to get an interdict. You will then have to apply for specific implement to force them to re-occupy.

How quickly can you get a court order?

A landlord can apply for an interim interdict or an interim specific implement. An interim order forces the tenant to stay in the premises or to re-occupy them until the full court action is resolved. That can take up to a year. The grant or refusal of an interim application normally results in the dispute being resolved through settlement. That is because an interim order is often a decent indication of what the court is going to decide in the future.

How quickly can you obtain an order?

We can obtain an interim order within one or two days of being instructed. That includes an instruction at the weekend.

What do you need to show to get an interim order?

There must be a valid legal right to obtain the order. That usually requires a clear and precise keep open clause.

You also need to show the court that the failure to grant the order will have a bigger impact on you than it will have on the tenant.

Usually the court prefers to maintain the status quo and so will often prefer to grant an order in favour of the landlord.

Keep a watchful eye

Its better to be able to stop a tenant from leaving than to force them to re-occupy. Keep a close eye on any flight risks for any tell-tale signs that they may be planning a midnight flit: Are they still receiving deliveries? Are they laying off staff? What is their stock level like? If it looks like they are leaving, think about court proceedings straight away.