No obligation to use a rental property as a supermarket
The Arnhem-Leeuwarden Court of Appeal has made a decision on whether the tenant of a building was obliged to operate a supermarket formula, or whether other retail practices should also be allowed in the building. See Arnhem-Leeuwarden Court of Appeal on 25 May 2023, ECLI:NL:GHARL:2023:4348.
Marqt had entered into a lease with regard to a building with the aim of operating a supermarket there according to the Marqt formula. Marqt is then taken over by Udea. Udea operates a supermarket opposite the building according to the Ekoplaza formula. For that reason, Marqt no longer wants to operate a Marqt supermarket in the rented property. Marqt then leases the space to a third party, who operates a furniture store there. The property owner demanded that Marqt still operate a supermarket according to the Marqt formula.
The rental agreement stipulates that the rented property is intended to be used for retail. It is also stipulated that the lessor guarantees that Marqt can use the leased property for a shop in accordance with the Marqt formula. The Court of Appeal ruled that by using the word ‘retail trade’, the parties intended to agree on a broader purpose for use than just that for a ‘shop in accordance with the Marqt formula’ or a ‘supermarket’.
The lessor pointed out that it had been agreed that it would pay an investment contribution to Marqt, which it also did, so that Marqt could make the rented property suitable for the establishment of a Marqt supermarket. With this investment contribution, the building has been adapted on behalf of Marqt into a more open, multifunctional retail space, suitable for all kinds of retail, including a supermarket. According to the court, it cannot be concluded from this that it had been agreed that the use of the building would be limited to the operation of a Marqt supermarket only.
The landlord’s claim to use the rented property as a supermarket was rejected by the court.
This judgment once again shows the importance of the formulation of the agreements made in writing.
Ludwig & Van Dam lawyers, franchise legal advice.
Do you want to respond? Then email to dolphijn@ludwigvandam.nl
Other messages
Termination of franchise agreement in case of changes in leased retail space – September 27, 2019 – mr. AW Dolphin
Termination of a franchise agreement in light of a substantial change in the leased retail space.
Article De Nationale Franchisegids: “Distribution of (potential) customers prohibited?” – September 17, 2019 – mr. AW Dolphin
Within many franchise organizations, agreements are made about the recruitment of (potential) customers in a certain area.
District protection no protection against termination due to urgent own use – dated September 17, 2019 – mr. AW Dolphin
As a landlord, can the franchisor terminate the lease for urgent own use, in the sense of district protection, while this would be excluded on the basis of the franchise agreement.
Unreasonable compensation at the end of the franchise agreement – dated September 17, 2019 – mr. AW Dolphin
Some franchise agreements stipulate that the franchisee always owes the franchisor a minimum of a certain amount of costs upon termination of the franchise agreement.
Legal Franchise Statistics 2019: slight decrease in number of franchise disputes
In 2018, 44 judgments were published on Rechtspraak.nl, 12 of which were appeal cases and one in cassation (a prognosis issue against Albert Heijn).
Article De Nationale Franchisegids: “Judge again rules in favor of Domino’s franchisees” – dated September 3, 2019 – mr. RCWL Albers
At the beginning of 2018, almost all franchisees of Domino's and the Association of Domino's Pizza Franchisees submitted two issues to the court in Rotterdam.