Supermarket competed by its own landlord

On 15 July 2014, the Court of Noord-Holland in interlocutory proceedings (ECLI:NL:RBNHO:2014:9635) made an interesting ruling about the competition of a supermarket by its own lessor.

At issue was the situation in which the lessor (namely Deen) leased a supermarket business space to Jumbo Supermarkets, which operated a Jumbo supermarket in the leased property. Deen has also started operating its own Deen supermarket in the immediate vicinity of this business premises.

The preliminary relief judge ruled that the landlord’s competitive actions must in principle be sanctioned and refers to a judgment of the Supreme Court of 17 December, ECLI:NL:HR:2004:AR2768 (Dunnewind-Schuitema), where this was determined. However, because this Danish supermarket was not a real full-service supermarket, as the Jumbo supermarket is, but rather a kind of “AH to go”, there was hardly any real competition. In that specific case, therefore, there was no question of a disturbance in the enjoyment of the rental. However, if there really is competition from the landlord, this can indeed be sanctioned.

It should also be noted that the rental agreement contained a non-compete clause. According to Jumbo, the parties have agreed that Deen would refrain from competing activities. Deen contested that explanation with reasons. According to Deen, it was only the intention that Jumbo would be indemnified against a claim for own use on the part of Deen. Deen points out that a non-compete clause has not been agreed and that Deen, as a supermarket chain, would certainly not include a non-compete clause in the rental agreements with third parties. In the opinion of the preliminary relief judge, Jumbo subsequently made its explanation insufficiently plausible. The appeal on the non-compete clause is therefore rejected.

Good and clear agreements between landlords and tenants about the arrival of competitors in the neighborhood over which the landlord has influence promote the certainty and continuity of successful cooperation.

mr. AW Dolphijn – Franchise lawyer Ludwig & Van Dam Advocaten Franchise attorneys, franchise legal advice. Do you want to respond? Mail to dolphijn@ludwigvandam.nl