Why Simon and Brookfield Want to Save JCPenney

Simon Property Group and Brookfield Property Partners’ interest in saving JCPenney, which filed for bankruptcy last month, has been well documented after being first reported by The Wall Street Journal.

This potential move makes a lot of sense, according to Eric Rapkin, the chair of Akerman’s Real Estate practice group. JCPenney is one of Simon’s top anchor tenants. By controlling the department-store chain, the mall owner can keep its anchor tenant and maintain occupancy since smaller retailers depend on larger tenants to drive foot traffic.

“I don’t think this will be a land rush for real estate owners to buy up their tenants who are going under,” Rapkin says. “But in certain situations where the retailer makes up a significant portion of a mall owner’s portfolio, and you can acquire them [the retailer] at a very attractive price in bankruptcy, there are a lot of good reasons to do it.”

By acquiring the anchor store, landlords don’t have to negotiate with a new owner.

“You’ve kept the rent flowing,” Rapkin says. “You’re also controlling the real estate [occupied by the anchor tenant] as opposed to someone else buying it.”

The ability to control the anchor tenant also has a trickle-down effect on smaller stores in the mall.

“If the anchor tenant is not open and operating some of those other tenants might have the ability to get their rent reduced or maybe terminate their lease,” Rapkin says.

Buying the anchor tenant also gives the mall owners options down the road if they want to redevelop their property.

“There are issues that you may have in those [anchor tenant] leases that you wouldn’t have with some of the smaller retailers,” Rapkin says. A company like JCPenney, depending on when they came into the mall, could have some pretty restrictive REA’s [Reciprocal Easement Agreements] that could be a stumbling block if you wanted to redevelop something.”

As an example, Rapkin points to Lerner Enterprises and The Tower Cos.’s experience at the White Flint Mall in Bethesda, Md. When the landlords started demolishing the property, Lord & Taylor, whose building sat next to the mall, sued. In the original 1975 agreement, the mall owners were to maintain White Flint as a “first-class” mall, according to Bethesda Magazine. The argument went that terminating leases and demolishing the property made it difficult to maintain a “first-class” mall.

A federal district court jury produced a $31 million verdict in favor of Lord & Taylor in August 2015. The Fourth Circuit Court of Appeals upheld that judgment in 2017, according to Bethesda Magazine.

“Lord & Taylor won a very large judgment because the mall owner needed the anchor’s approval to demolish the mall and make changes that the anchor would not go along with it,” Rapkin says. “They went ahead and started demolishing anyway. They rolled the dice, and Lord & Taylor took them to court and won.”