Consider this scenario: your retail tenant is still paying rent but they’re not actually operating the business. The storefront sits dark, “CLOSED” sign on the door, no customers. No activity whatsoever. The space looks abandoned even though technically the tenant hasn’t vacated.
You’re stuck. The lease doesn’t let you terminate just because they stopped operating. You can’t show the space to prospective new tenants because the existing tenant still has possession. Your other tenants complain that the dead storefront hurts their foot traffic.
This is “going dark” and it destroys retail property value. Washington doesn’t provide statutory remedies for landlords facing this problem. Your rights depend almost entirely on what your lease says. If your lease doesn’t have the right provisions, you have limited options.
This article walks through five lease provisions that address going dark problems, explains what each provision should contain, and shows you how to protect your property value through careful contract drafting when tenants want to stop operating without actually leaving.
Why Your Lease Needs a Continuous Operation Clause (And What It Should Say)
A continuous operation clause requires the tenant to actually operate their business during specified hours. It prevents them from paying rent while functionally leaving the space dark.
Most retail leases don’t include continuous operation clauses. Tenants often resist them during negotiation. Landlords give may them up to close the deal. Then the tenant’s business struggles, they stop operating, and the landlord realizes too late they have no contractual right to address the problem.
What a working continuous operation clause should include:
Specific operating hours. Consider language like “tenant shall operate the business at least 50 hours per week, including at least 8 hours on Saturdays and Sundays.” Vague language like “reasonable hours” invites disputes.
Definition of what “operating” means. You may want to state that “operating” means the business must be open to customers, adequately staffed, stocked with merchandise, and conducting normal business operations. Otherwise tenants claim they’re “operating” even when the door is locked.
Exceptions for holidays, emergencies, and temporary closures. Allow reasonable closures for holidays, renovations, or force majeure events. It could be in your best interest to define how long temporary closures can last (typically 30-60 days maximum per year).
Consequences for violation. Make going dark a lease default that gives you termination rights and other remedies. Some landlords include percentage rent that increases if the tenant goes dark, making it financially painful to stay but not operate.
Landlord’s inspection rights. Reserve your right to inspect during operating hours to verify compliance,otherwise you can’t prove violations.
The enforcement challenge:
Even with a solid continuous operation clause, forcing a tenant to actually open and operate through specific performance is difficult. Courts are often reluctant to grant injunctive relief requiring ongoing business operations.
The real value of a continuous operation clause is it gives you contractual default remedies. You can terminate the lease and re-let the space, or pursue damages, instead of being stuck with a dark storefront and no legal recourse.
Why Common Area Maintenance (CAM) Charge Provisions Need Clear Language About Non-Operating Tenants
Let’s return to the scenario: your retail tenant goes dark. They stop operating but keep paying base rent. Your lease requires them to pay CAM charges for parking lot maintenance, landscaping, snow removal, and common area utilities.
The tenant stops paying CAM. They argue they’re not benefiting from common area maintenance since they’re not operating a business. Why should they pay for parking lot upkeep when they have no customers? Why pay for landscaping that benefits other tenants but not them?
If your lease doesn’t explicitly address CAM obligations when a tenant goes dark, you face disputes. Tenants may argue they shouldn’t pay for services they’re not using. While your lease probably requires CAM payments generally, ambiguity about non-operating periods creates litigation risk.
What your CAM provision should say:
CAM obligations continue regardless of whether tenant operates. You may want to state explicitly that CAM charges are due even if the tenant closes the business, stops operating, or otherwise fails to use the premises.
CAM benefits the property, not just the operating tenant. Explain that CAM charges maintain property value and benefit all tenants including non-operating ones. The tenant who goes dark still benefits from maintained common areas that prevent property deterioration.
You may want to state no offset rights for non-operation. The tenant can’t reduce CAM payments just because they’re not operating. CAM charges are independent from business operation status.
Consider a separate default provision for CAM non-payment. Make CAM non-payment a lease default separate from rent non-payment. Some leases only treat rent non-payment as default, which creates ambiguity about CAM enforcement.
Example language: “Tenant’s obligation to pay CAM Charges continues regardless of whether Tenant operates its business from the Premises, closes the business temporarily or permanently, or ceases to use the Premises for any reason. Tenant acknowledges that CAM Charges maintain property value and benefit all tenants including Tenant whether or not Tenant actively operates a business.”
The Assignment and Subletting Provisions That Let You Replace Dead Tenants
Perhaps your tenant wants to stop operating but doesn’t want to break the lease. They offer to find a replacement tenant who will take over the lease. They’ll assign the lease or sublet the space.
Your lease requires landlord consent for assignment and subletting. You review the proposed replacement tenant: decent financials, compatible business. You’re about to approve the assignment.
But your lease may not protect you adequately.
Common problems with basic assignment provisions:
They may not address whether you can withhold consent based on the existing tenant’s defaults. If your tenant is dark or behind on CAM charges, can you refuse the assignment until they cure?
They may not specify whether the original tenant is released from liability upon assignment. Most landlords want the original tenant to remain liable even after assignment and not all assignment clauses clearly preserve that liability.
They may not give you recapture rights. Some landlords would rather terminate the lease and re-let directly instead of approving an assignment. Basic clauses may not include this option.
They may not address subletting profit-sharing. If the tenant sublets at higher rent than they’re paying you, who gets the profit?
What your assignment clause should include:
No assignment or subletting if tenant is in default. Require the tenant to be current on all obligations (rent, CAM, and operating covenants) before you’ll consider any assignment or subletting request.
Original tenant remains liable after assignment. State explicitly that assignment doesn’t release the original tenant from lease obligations. Both the assignee and the original tenant remain liable.
Recapture rights. Give yourself the option to terminate the lease instead of approving an assignment. Consider whether you want this right for all proposed assignments or only certain types.
Profit-sharing for subleases. If the tenant sublets at rent higher than they’re paying you, require them to share that excess rent with you (typically 50-50 split).
Approval standards. Define what makes an assignee acceptable: creditworthiness at least equal to the original tenant, compatible business use, assumption of all lease obligations.
Why You Need Access Rights to Show Dark Spaces to Prospects
Hypothetically, your retail tenant goes dark six months into a five-year lease. You want to find a replacement tenant for when this lease ends. You need to show the space to prospects.
But the tenant refuses to give you access. The lease gives you access rights for repairs and emergencies, but nothing about showing the space while the tenant is still in possession.
You can only show prospects the exterior. “Sorry, we can’t go inside, but trust me, it’s a great space.” That doesn’t work for retail leasing.
This isn’t a Washington statutory issue. Commercial landlord entry rights are governed by the lease contract, not by statute. If you didn’t negotiate showing rights, you don’t have them.
What your access clause should include:
Right to show premises to prospects in the final 12 months of lease term. Reserve the right to bring prospective tenants through the space during the last year of the lease.
Extended showing rights if tenant is dark or in default. If the tenant stops operating, you should be able to show the space immediately, not just in the final year. Make going dark or other defaults trigger your immediate access rights.
Reasonable notice requirements. You need to give the tenant advance notice before showing the space (typically 24-48 hours). Define what “reasonable notice” means.
Right to place “For Lease” signage. Reserve your right to post signage indicating the space will be available. Specify sign size and placement restrictions.
Tenant cooperation requirements. Require the tenant to reasonably cooperate with showings: keep the space clean, remove excess materials, allow access during normal business hours.
What to do when tenants resist during negotiation: Explain that showing access protects both parties. You reduce vacancy after they leave. They avoid arguments about damages if you hold them liable for rent after they vacate.
The Termination and Remedy Provisions That Address Going Dark
You have a continuous operation clause. Your tenant violates it by going dark. You want to terminate the lease and re-let to someone who will actually operate a business.
Your lease says you can terminate for “material breach” and going dark violates the continuous operation covenant. But your termination provision requires 30 days’ notice to cure before you can terminate.
The tenant receives your termination notice. Thirty days later, they re-open the business. You can’t terminate. They operate for three months, then go dark again. You start over with a new termination notice. They cure again by re-opening and this cycle continues.
Your termination rights don’t help you because the tenant can always temporarily cure to avoid termination.
What your termination and remedy provisions should address:
Remedies for going dark violations. Consider including multiple remedy options: termination rights, liquidated damages, increased rent during dark periods, or combinations. Courts scrutinize penalties, so structure monetary consequences as reasonably related to your actual damages (lost property value, impact on other tenants, difficulty re-leasing).
Pattern of violations limits cure rights. If the tenant violates the continuous operation covenant multiple times (typically two or three times), they lose the right to cure future violations.
Definition of abandonment that triggers remedies. State that going dark for a specified consecutive period (commonly 60 days) constitutes abandonment and triggers your remedies. The specific timeframe should match your property type and market.
Accelerated damages upon termination. If you terminate because the tenant went dark, consider including a provision for accelerated rent for some portion of the remaining term, structured carefully to avoid appearing punitive. This gives you damages while you work to re-let.
Alternative consequences short of termination. Some leases include rent increases during dark periods or loss of exclusivity rights, giving landlords leverage without forcing immediate termination.
Example provision: “If Tenant fails to continuously operate the business for any 60 consecutive days, Landlord may, at Landlord’s option: (a) terminate this Lease upon written notice to Tenant, (b) increase Base Rent by 25% until Tenant resumes continuous operation, or (c) pursue any other remedy available at law or in equity. If Landlord terminates this Lease due to Tenant’s failure to operate, Tenant shall remain liable for rent and other charges as provided in Section [damages upon default].”
Balancing enforceability with protection: Work with your attorney to structure remedies that courts will enforce. Provisions that look purely punitive face challenges. Remedies reasonably related to your actual harm from the tenant going dark are more defensible.
Getting Lease Provisions That Protect Against Going Dark
K&S Canon assists Seattle and King County commercial landlords with lease drafting for retail and other commercial properties. Our team drafts continuous operation clauses, CAM provisions, access rights, and remedy language that give you enforceable contractual protections when tenants go dark.
We serve commercial property owners throughout Seattle and King County, including Bellevue, Redmond, Mercer Island, Issaquah, North Bend, Burien, Shoreline, Sammamish, Kent, Renton, Federal Way, and Kirkland.
Going dark destroys property value, and Washington law provides no statutory remedies. The time to address it is during lease negotiation, not after your tenant stops operating. Strong contract provisions give you options when tenants go dark.
Contact K&S Canon today to review your lease forms or draft new leases that protect against going dark. Call us at (206) 507-4009 or visit kscanon.com to discuss your commercial leasing needs.
Legal Disclaimer: This article provides general information about commercial lease provisions and should not be considered legal advice. Every case is different. Outcomes depend on specific facts and circumstances. For advice about your situation, contact a licensed attorney in your state.