No mediation fee of one million guilders for the development of supermarket real estate

On October 13, 2014 it was published that the Court of Appeal in Amsterdam on April 22, 2014 ( ECLI:NL:GHAMS:2014:1414 ) ruled on the claim of a mediator for payment of the agreed mediation fee of one million euros in connection with the acquisition of supermarket real estate in order to establish an Albert Heijn there.

In the year 2000, Ahold (or at least its group company Ahold Europe Real Estate & Construction BV) concluded an agreement with an intermediary on the basis of which the intermediary would receive a compensation of one million guilders if Ahold has municipal permission for the realization of a Vierhavenstrip supermarket in Rotterdam of approximately 3,500 m2 (company floor area, also known as “GFA”) and approximately 300 to 400 parking spaces, further specialized in a specific building plan.

Ahold  was involved in the development project from August 2000 to mid-2002. Given the uncertainty whether Ahold  would receive permission from the municipality of Rotterdam for the realization of a desired supermarket  Ahold  withdrew. Now that no building permit has been granted, the court had rejected the mediator’s claim, which judgment has been upheld by the court. The mediator’s appeal to unjust enrichment and to the right to a reasonable brokerage fee are also rejected, since Ahold would not have been favored and no agreement has been concluded between Ahold and the municipality through the mediation.

The published judgment shows that it was considered that Ahold leased business space for a supermarket at the relevant location in 2011. However, it is known from general sources that more relevant things have happened in the meantime. It is possible that this was discussed in the proceedings, but this is not apparent from the published judgment.

It appears from a ruling by the Council of State of 14 July 2010 ( ECLI:NL:RVS:2010:BN1069 ) about the development of this supermarket location that a zoning plan was adopted on 17 June 2008, which created the possibility of establishment of one supermarket with a gross floor area of ​​3,000 m2. It also appears that an agreement has already been concluded between Dura Vermeer BV, the project developer of the planning area, and Ahold Vastgoed BV and Albert Heijn BV regarding the establishment of an Albert Heijn XL in the planning area before the zoning plan is adopted. It is therefore not the case that Ahold did nothing after 2002 and in 2011 concluded a lease agreement for the supermarket location out of the blue.

This ruling does show the enormous interests involved in acquiring supermarket real estate. In addition, it also appears that in such disputes it is extremely important to set out the complex of facts in detail. However, that is no guarantee for a case won.

Mr AW Dolphin  – Franchise attorney

Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Mail to dolphijn@ludwigvandam.nl