dissenting.
The written lease governs here, and pursuant to its terms the right was reserved in the landlord of the shopping center to "make changes, additions, deletions, alterations and improvements in and to such areas, and to permit advertising displays, entertainment and educational displays, and events, and kiosks thereon."
The key word in the provision is "permit". The landlord retained the right "to permit ... kiosks thereon." The synonym for it most favorable to the position of the landlord in this case would be "license". So understood the lease authorizes the landlord to license others to have "advertising displays, entertainment and educational displays, and events, and kiosks" within the mall common area. In essence it authorizes the landlord to license others to have "displays ... events, and kiosks" in the mall common area. The majority concludes that a kiosk is a small stand or booth of a semi-permanent nature. So understood, the lease simply authorizes the landlord to license others to use common mall area for "displays ... events" and small stands or booths of a semi-permanent nature.
Under the aegis of these lease provisions the landlord took exclusive possession of two parcels of the mall common area, and erected, or permitted the erection of, large permanent booths upon them, and received consideration from retailers in return for their exclusive occupancy. This constituted a lease and not a license. The creation of leasehold estates in discrete parcels within the mall common area resulted. Under the shopping center lease, the landlord reserved no right to grant and convey such estates in areas within the common mall. I agree with the trial court that there was a breach of the lease here, and would affirm the judgment.