How to Ask for an Exclusive Use Clause
An exclusive use clause is one of the terms we advise you to ask for on our lease checklist.
At Reach Commercial Real Estate, we represent tenants. We help you find locations, compare costs, investigate property questions and negotiate the lease. You bring your business plans. We help you evaluate where those plans fit.
This guide covers the information to request from the landlord, the use definitions in Melbourne's zoning code and the other lease terms on our checklist.
1. Put the exclusive use clause on your list of lease terms
We advise you to ask for each term on our lease checklist. The checklist lists term and renewal options, landlord work versus tenant work, TI allowance, free rent during buildout, CAM caps, exclusive use, use clause, personal guaranty, assignment and a permit contingency.
2. Ask the landlord for known use restrictions
A listing gives us a starting point. We ask for the information needed to evaluate the property.
For each candidate, we request:
Known use restrictions.
Previous use and available floor plans.
Parking arrangements.
Sign criteria.
If a critical answer is missing, we keep the property under investigation. We do not treat an unanswered question as an approval.
3. Look at the neighbors and the customers they bring
We use your requirements to identify locations worth investigating. Together, we look at visibility, access, nearby customer destinations, parking, signage and delivery access.
Our checklist covers second-generation space, co-tenants that bring customers, visibility and parking at peak hours.
How your business runs decides the space: doors, parking ratio, customer traffic and move date.
We tour with you and write down what the flyer left out.
4. Describe your use in Melbourne's terms
For Melbourne locations, Planning and Zoning can check the address of your proposed business location to help determine whether your business would be permitted there, according to Melbourne's Starting a New Business Toolkit.
Appendix B, Article II, of the City of Melbourne's Code of Ordinances defines these uses in words:
Restaurant: an establishment selling food and drink for consumption on the premises, where the food is prepared on the premises and served continuously during operating hours, with a fully equipped kitchen in operating condition. The sale of food and non-alcoholic beverages must constitute at least 51 percent of the gross revenue of the establishment.
Retailing: an establishment where the principal use is the selling or renting of goods or merchandise to the general public in small lots. The term does not include service uses, restaurants and bars, vehicle sales/rentals, or any industrial use.
Service, personal: a service use primarily engaged in providing services involving the limited care of a person, his or her apparel, pets, or small appliances. Examples include barbershops, beauty shops, shoe repair, alterations, pet grooming, appliance services, window tinting, and similar uses.
Recreation, indoor: an indoor public or private establishment designed and equipped for the conduct of sports and leisure time activities. Examples include bowling alleys, theaters, gymnasiums, pool halls, and skating rinks.
Melbourne lists every allowed use by zoning district in Tables 1A and 1B of Appendix B. A use is permitted by right or it needs conditional use approval.
In the C-1 district, restaurants and personal services are permitted by right, retail is permitted, and bars and indoor recreation need conditional use approval. In C-2, restaurants, personal services, retail and indoor recreation are permitted and bars need conditional use approval.
5. Take the clause language to your attorney
Once you select a property, we negotiate the business terms. Your Florida commercial leasing attorney reviews the legal language and documents.
We focus on permitted use, approval contingencies, landlord delivery, tenant improvement allowance, rent commencement, maintenance obligations, additional charges, and personal guaranty and exit terms. ## Extra items to check
Your sign. For each candidate, we request the sign criteria. Signage is on the list of work that requires a permit in Melbourne's Building Section FAQ.
Zoning in writing. Melbourne offers a Zoning Confirmation Letter from the Zoning Technician, for a fee, when a lender, real estate transaction or similar purpose requires written documentation of zoning classification. The city's fee page lists a zoning verification letter at $157.00, and Brevard County's fee list shows a Written Zoning Verification Fee of $37.50.
Conditional use in Melbourne. The city's fee page lists the conditional use fee at $1,375.00 plus a $125.00 legal advertisement fee, and the application is signed by each and every owner of the land and notarized.
Owner authorization in unincorporated Brevard County. If you do not own the property, the property owner of record must authorize you to make a zoning application, and a notarized statement from the owner must accompany it.
Start your search with Reach
You do not need to find the property before calling us. Helping you find and evaluate the property is part of our work.
Bring your requirements, budget, preferred area and target opening date. For each candidate, we request known use restrictions and sign criteria. We will use those details to build your search, compare locations and negotiate the lease. In most deals the landlord pays our fee.
Already found a space? Send me the address and listing. We will start with the property questions and deal terms you need to investigate.
Cassandra Hartford, Reach Commercial Real Estate, 321-514-0876, cassandra@reachcommercialre.com, 909 E New Haven Ave #300, Melbourne, FL 32901.
Related: the leasing guide.
Frequently Asked Questions
Who decides whether a use that Melbourne's code does not list is allowed in a district?
The community development director determines whether the use is allowed in the specific zoning district and whether it is listed as a permitted use, a permitted use with conditions or a conditional use. Decisions may be appealed to the planning and zoning board (Appendix B, Art. V, Sec. 2(A) to (C)).
Does Melbourne's zoning code name tattoo studios or nail salons?
The words tattoo and body art return no hits in the full text of Appendix B. Nail salons are not named either.
What does Melbourne require for a bar or other drinking establishment that is not a restaurant?
Conditional use approval to sell or serve alcohol for on-premises consumption. Appendix B, Art. VI, Sec. 2(Q)(1), applies this to all bars, micro-breweries, micro-distilleries and other drinking establishments unless they qualify as a restaurant or as accessory to a hotel or motel of 100 or more guest rooms.
Sources
Written by Cassandra Hartford, founder and CEO of Reach Commercial Real Estate. She has worked in Brevard County commercial real estate for 17 years, representing buyers, sellers, landlords, and tenants across Florida's Space Coast.
Comments