Keep-open clause 8 marked on a retail lease draft

How to Review a Commercial Lease Keep-Open Clause in England

Log keep-open hours, written exceptions, Argyll Stores damages vs injunction, and schedule 3 notional turnover before you sign.

October 13, 2026•9 min read•Article

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Key takeaway in 30 seconds

A keep-open covenant on an England retail lease is a positive duty to trade during named hours, keep active trade, and dress the windows. Argyll Stores makes a reopen injunction exceptional; it does not erase the covenant or damages. Log clause 8.1–8.4 and schedule 3's notional turnover before treating bank holidays, losses, or unenforceable as settled. Narrow clause 8 or walk.

Review a keep-open covenant by logging the hours, active-trade, and display limbs, the written exceptions, and that England and Wales treat damages as the ordinary remedy after Argyll Stores — not a void covenant. Mark schedule 3's notional turnover if you close. Narrow clause 8 or walk before Friday 16 October 2026.

The agent's 8 October email reads Argyll Stores as "the clause is effectively unenforceable". That mixes two outcomes. The House of Lords refused a final injunction to force trading; it did not delete the covenant. Hours, bank holidays, and a losing-unit story are still in the draft. Log those limbs before Friday.

In October 2026 Kensa reviews Unit 12, Harbour Lights Retail Parade from a Falmouth desk. Clause 8 is the keep-open; schedule 3 adds notional Gross Turnover if she closes. The email sets bank holidays aside and claims loss alone lets her shut. One covenant, not the whole lease.

Disclaimer: Checkory provides AI support, not legal advice. Consult a qualified lawyer for binding decisions.

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Damages are not a void covenant

After Argyll Stores, a reopen injunction is exceptional in England and Wales. Damages remain ordinary. The covenant still binds. Do not treat "unenforceable" as leave to ignore clause 8.

What hours, active trade, and display does clause 8.1–8.2 lock?

Write three limbs from clause 8.1 before relying on the email: open for retail trade during Centre Opening Hours; active trade in substantially the whole Premises; display windows properly dressed. Unlocked doors alone are not the whole duty.

Clause 8.2 sets Centre Opening Hours at 09:00 to 18:00 Monday to Saturday and 10:00 to 16:00 on Sunday, including bank and public holidays, or such other hours as the landlord may reasonably prescribe for the Parade. Stevens & Bolton (26 October 2023) often excludes bank holidays; this packet — the draft lease file set — includes them. The typical mistake is importing that exclusion. Harper James (updated 12 June 2024) treats hours as fixed or by centre reference — mark the landlord's "reasonably" power. Permitted use is a different clause.

Three keep-open limbs from clause 8.1–8.2 on a checklist — Bank holidays sit inside Centre Opening Hours on this draft

Which exceptions are written — and why is loss alone not one?

Map only clause 8.3's five carve-outs: repairs or alterations permitted under the lease; a reasonable period before authorised assignment or underletting; staff training; damage making trade not reasonably practicable; and trading that would breach law or another lease provision. Do not invent Christmas or pandemic exceptions that are not printed.

Clause 8.4 says closing because trade is unprofitable is not an exception. LegalVision (updated 11 December 2023) lists similar exceptions — do not paste them over this draft. Repair words in 8.3 are not a day-one FRI rewrite; use the FRI covenant review. In practice, a losing unit stays inside clause 8 unless 8.3 applies.

After Argyll Stores, do damages mean the keep-open is empty?

No. In England and Wales the ordinary remedy after Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd is damages, not a final injunction to force trading. The covenant still binds. "Unenforceable" is the wrong synonym for "no reopen order".

On Bailii, [1997] UKHL 17 (21 May 1997), Argyll closed a loss-making Safeway, admitted breach, and still escaped a reopen order. Supervision, imprecise "open for retail trade" wording, and oppression where the business loses money were the reasons. Damages remained. Gordons (11 April 2024) and TLT (January 2020) treat damages as settled England and Wales practice. Proving landlord loss is harder for a non-anchor unit. Forfeiture may arise under another clause — a different remedy, not a reopen order. Scotland can compel trading on clear drafting; this lease is England only. Thomson Snell (2 January 2024) notes that closing does not wipe other covenants.

Argyll Stores damages versus reopen injunction on a keep-open note — Ordinary remedy is damages; the covenant still binds

How do schedule 3 notional turnover and rent-review onerousness sit beside the covenant?

Schedule 3 adds base rent plus turnover at 8% of Gross Turnover above a threshold. If the Premises are not kept open on more than ten Trading Days in a Quarter, other than under clause 8.3, Gross Turnover is deemed not less than the average of the previous four open Quarters. Mark that ten-day trigger. Do not read notional turnover as a months-only rule.

TLT and Harper James flag notional rent when premises stay closed. Damages and notional deeming are different tools — either can apply without a reopen order. Do not rewrite Gross Turnover here. On rent review, Bowcock Cuerden lists keep-open as potentially onerous: the hypothetical lease should mirror the same tight keep-open. Note only — no formula rewrite here.

Schedule 3 ten-day notional Gross Turnover beside a keep-open covenant — More than ten closed Trading Days can deem Gross Turnover

Log clause 8 and schedule 3 before Friday

Open the keep-open, not the email

Read clause 8.1–8.4 and schedule 3 first. The 8 October email is commentary, not the covenant.

Write the three limbs and the hours

Open for retail trade; active trade; dressed windows. Hours include bank holidays and the landlord's reasonable power.

Map 8.3 and 8.4

List the five written exceptions. Unprofitability is not an exception.

Separate remedy from void

Argyll Stores: damages ordinary, reopen exceptional. The covenant still binds.

Mark the ten-day notional trigger

Schedule 3 deems Gross Turnover after more than ten closed Trading Days outside 8.3.

Note onerous keep-open on review

Keep the same keep-open in the hypothetical lease. Do not invent a reviewed rent.

Narrow clause 8 or walk

Choose one before Friday 16 October 2026. Do not sign on the email.

Red-flag checklist that contradicts the 8 October email

Run each email claim against the printed words. For example, bank holidays sit inside 8.2; a losing unit is blocked by 8.4; Argyll Stores does not delete the covenant. Use the commercial office lease checklist for the rest of the lease. If the agent folds a break into keep-open talk, open the break-clause review instead.

Email claim versus the draft

8 October claim	What the packet says	Mark before Friday
Argyll Stores makes the clause unenforceable	Damages ordinary; reopen injunction exceptional; breach admitted	Covenant still binds
Bank holidays never count for retail	Clause 8.2 includes bank and public holidays	Bank holidays are inside the hours
A losing shop can shut without keep-open risk	Clause 8.4: unprofitability is not an exception	Loss alone is not in 8.3
Notional turnover only after months of closure	Schedule 3: more than ten closed Trading Days outside 8.3	Ten-day trigger applies
Active trade and dressed windows are soft extras	Clause 8.1 names both limbs with open-for-trade	Three limbs, not one
Sign Friday on this reading	Friday is a signature meeting, not a court date	Narrow clause 8 or walk

Narrow clause 8 before Friday, or walk

Damages and schedule 3 notional turnover can still apply without a reopen order. Narrow means a pre-completion variation that aligns hours (including bank holidays), widens 8.3 only by negotiated words, softens 8.4 only in print, and matches schedule 3's trigger to the keep-open exceptions. Walk means do not sign on the email's reading.

Choose one before Friday 16 October 2026 and write it in the log. Upload the draft on document analysis for a first machine pass that extracts clauses, then verify every High flag — a high-severity mark to confirm. The commercial lease review tool covers the wider lease. Neither marks the PDF ready to sign.