Court of Zwolle/Gerechtshof `s-Gravenhage
The District Court of Zwolle recently ruled that supermarket organization Plus may still transfer its rental rights from a certain location to supermarket organization Lidl, despite the fact that the owner of the shop did not agree to this.
The court’s substitute permission is based on the statutory right of subrogation upon transfer of business. If the tenant wishes to transfer his company and the prospective buyer offers sufficient guarantees to comply with the lease, this replacement permission can be requested from the subdistrict court judge for the transfer of the tenancy rights. In that case, according to the Supreme Court, the subdistrict court must weigh up the interests of both parties. The present case involved a loss-making situation for Plus cs. Lidl was also a tenant of the owner at other locations. Furthermore, assets, personnel and goodwill were transferred. As such, the court therefore concludes that a company was transferred and that there was also a sufficiently weighty interest due to the loss-making operation for Plus and that there was therefore not only the commercialization of (scarce) retail locations for supermarkets.
The judgment of the District Court of Zwolle is also interesting because shortly afterwards the Court of Appeal in The Hague, also concerning supermarket organization Lidl, issued a judgment with the opposite outcome. In that case it concerned the transfer of the rental rights to the supermarket organization Coop, which Lidl in turn intended to transfer. In that case, the court considers that although personnel is transferred, the most important personnel, the cadre, was not transferred and no stock and inventory were taken over either. In that case, the business space should be delivered empty and broom clean. The court concludes from this that there is not actually a transfer of an undertaking, being one set of activities forming an entity, which is one of the requirements for making use of the statutory right of substitution. Moreover, Lidl would not have sufficiently demonstrated that it had a sufficiently compelling interest in this transfer, because it had substantiated the alleged loss-making situation too summarily.
Both judgments show that the dividing line between whether or not the lease rights may be transferred without the consent of the owner of the retail location can be thin and often depends on the actual circumstances of the case, although in both cases the departing and successive tenants own a supermarket. wanted to exploit in one case there is a transfer of the company and in the other case it is not. This means that it must be carefully considered in advance how the parties will shape the transfer and on the basis of which they will request cooperation for the transfer of the associated tenancy rights.
Now that the exchange of locations is currently in full swing in the supermarket sector, these statements will undoubtedly be critically examined at the headquarters of supermarket organizations. Incidentally, it should also be added that in franchise relationships when a lease is transferred, the consent of the subtenant/franchisee is also required, which, as practice shows, is sometimes lost sight of. Landlords, but also franchisees, must therefore be critical of exchanging various locations over their heads and respond adequately and in a timely manner.
Mr J. Sterk – Franchise lawyer
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