Walking along Glasgow's streets can be nostalgic as memories of shoppers rushing beneath decades-old buildings come into frame. However, while the architecture has stood the test of time, the retailers within them have not.

These days, it's common to see more locked doors than open ones. The increasing popularity of online shopping and the cost-of-living crisis are often blamed, but there is also a lesser-known challenge for retailers in keeping their doors open: the “keep-open” clause.

This clause requires tenants to keep their premises open and operational during agreed hours and days, ensuring continuous activity for landlords. Without this, a tenant could close and cease trading at any point, leaving an unoccupied space.

This is an unattractive option for landlords, who may face difficulties in marketing a vacant unit. Tenants may also suffer from the absence of a keep-open clause, for example, the closure of an anchor tenant within a shopping centre leading to reduced footfall, potentially impacting business.

However, a keep-open clause may not always benefit all parties involved, especially concerning what constitutes being 'open' in the first place.

During economic downturns or times of uncertainty, such as the COVID-19 lockdowns, tenants might opt to lower expenses by "mothballing" stores, aiming to save on operational and staffing costs. This involves temporarily closing and maintaining a building in a state of inactivity to preserve it.

While tenants may view these actions as protective measures, landlords perceive them as tenants failing to comply with the terms of their lease agreements.

Scottish courts generally enforce valid keep-open clauses, instructing tenants to fulfil lease obligations. Tenants often claim these clauses are too vague for enforcement, arguing courts cannot intervene unless clauses are clear and specific. However, courts typically reject these arguments, assuming parties agreed to and understood their lease terms.

To promote harmony and sustain the growth of Scottish businesses in 2024, it's vital for landlords and tenants to collaborate in navigating the complexities of keep-open clauses, especially alongside "use" clauses. The initial guidelines regarding what a shop can sell (the "use clause") may be too broad, granting significant leeway in terms of product offerings. While this flexibility can be beneficial, excessive changes may inadvertently harm the landlord's interests and lead to disputes.

The double-edged nature of a keep-open clause poses a complex challenge. On the one hand, it provides security for both landlord and tenant during tough times, yet on the other, it can lead to disagreements over control.

This begs the question: are keep-open clauses truly the best solution for sustaining Scottish high streets? To rejuvenate Scotland's high streets, it may be time for landlords to acknowledge the ongoing struggles faced by tenants. Ultimately, tenants are keen to keep their shops open, and exploring mutually beneficial strategies such as flexible closing times and four-day working weeks could help them survive and flourish.

Perhaps retailers would argue it’s time to retire keep-open clauses and allow them to gain their own sense of nostalgia.

Ken Carruthers is a partner at MFMac and head of its real estate litigation team