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A Bad Move
by Ron Davis

Round one in a dispute over the forced move of a Georgia shopping center tenant from one location to another goes to the tenant.

The shopping center, Augusta Mall in Augusta, leases space to the tenant for the operation of a retail clothing shop. And the dispute between the two parties results from efforts by the center’s owners to enforce the terms of their lease contract.

Specifically, the owners want to relocate the tenant to different premises at the center. But the tenant is fighting such a move, arguing that the new site is smaller than the current location and requires an extension of the lease.

The tenant’s lease, however, seems to favor the center’s owners. One provision states, for example, that “[Augusta Mall] may elect to relocate [the tenant] to another location in the shopping center at [Augusta Mall’s] expense.”

So when the tenant refused to move as asked, the center’s owners sued, alleging that “the tenant’s wrongful refusal to relocate to another space within the premises after receipt of proper notice…is a direct and ongoing violation of the terms of the lease agreement.”

A Georgia court ruled in favor of the center’s owners. And the judge ordered the tenant to “immediately vacate the space it currently occupies…and relocate, pursuant to the lease agreement, to [the assigned space]….” But the judge did agree to a later “trial on the merits” to determine if the relocation must be a permanent one.

The tenant appealed, contending that the judge erred in ordering a relocation prior to resolving the legality of the lease terms.

A Georgia appellate court concurred, explaining, “The lower court did not preserve the status quo, as it required the tenant to vacate its current space and relocate to a smaller space in the mall…. There must be some vital necessity for such a ruling so that one of the parties will not be damaged and left without adequate remedy. Here there is no evidence of vital necessity or that Augusta Mall would suffer irreparable harm if denied its [right to force the tenant to move].” (Hipster, Inc. v. Augusta Mall Partnership, 2008 WL 1821927 [Ga.App.])

Decision: May 2008
Published: May 2008



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