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
Other messages
Judge anticipates Franchise Act: no mandatory formula change (without threshold value)
The District Court of Amsterdam ruled that a Blokker franchisee is not obliged to renovate the store in accordance with the latest formula principles, as instructed by Blokker.
Interview Mr. J. Sterk and mr. C. Rutten in Franchise+: “Call to the automotive sector: prepare yourself well for the new Franchise Act” dated October 2, 2020
The new Franchise Act has a broad effect, also in the automotive sector. But are people aware of it enough?
Article The National Franchise Guide – “Corona discount of 50% on the rent” – mr. AW Dolphijn – dated September 15, 2020
Disappointing turnover due to the corona crisis may mean that the rent is halved, even if the rent is partly turnover-related.
Article Franchise+ – “Franchisor uses “derivative formula” (without his knowledge)” – mr. AW Dolphijn – dated September 9, 2020
Many franchisors will not be aware of the fact that they use a "derived formula" as referred to in the Franchise Act.
Article Franchise+ – “Obligations and rights of the starting franchisee” – mr. AW Dolphijn – dd
What should you pay attention to as a starting franchisee, what are your obligations and what are your rights when concluding the franchise agreement?
Article Mr. C. Damen – Three conditions for the right to customer compensation for the agent upon termination of the agency agreement – dated August 26, 2020
In the agency relationship between an agent and a client (the principal), the parties record their cooperation agreements in an agency agreement. When the principal enters into the agency agreement