Enforcing Lease Addendum

[BobGG]

Now what if the carry-out business expanded their lease space after we signed our lease ? Wouldn't the landlord have to enforce the non-compete addendum then , seeing that their lease contract would have either been redone or extended to accommodate they added lease space ?

 

[Zigner]

The LL *could* put such a clause in their lease, yes. It would be part of the negotiations. Unfortunately, you really have no say in that.

 

[adjusterjack]

Now what if the carry-out business expanded their lease space after we signed our lease ? Wouldn't the landlord have to enforce the non-compete addendum then , seeing that their lease contract would have either been redone or extended to accommodate they added lease space ?

I think the only thing that has been made clear in this thread is that there is a difference of opinion as to whether the LL is liable for anything.

Have you talked to the LL about this? Have you talked to the take-out place? Will the LL tell the take-out place to stop selling ice cream? Will the take-out place agree? (I doubt it.)

I can see the LL put in a position of just throwing up his hands and saying sorry, nothing I can do.

Then what?

Would you sue the LL?

What would you want from the LL in a lawsuit?

To get out of your lease and move?

Money? How much money? Lost profit? How much lost profit? Have you counted how many people have walked out of the take-out place with ice cream so you can determine how many sales you lose over any given period of time? Is that even possible? To sue somebody for money you have to determine the amount of money and then back it up with evidence.

Would you sue the take-out place and seek an injunction against selling ice cream?

It doesn't really matter what any of us think.

You have to think about what it's going to take to get your exclusivity back. And it's probably going to take thousands in lawyer fees just to get started. Hence the original question about how much money you are willing to throw at it. Could be a lot and could far outweigh the ice cream sales that you are losing.

 

[Zigner]

Would you sue the take-out place and seek an injunction against selling ice cream?

Not only would that be inappropriate, it could subject the OP to sanctions for abuse of process.

 

[adjusterjack]

That's right.

 

[justalayman]

I disagree wtih Justa on this. If the landlord issued a lease to another business that didn't protect the exclusivity in the poster's lease, they are indeed liable. The landlord can not retroactively apply changes to the other party's lease but they certainly are responsible for not providing the exclusivity.

The other tenant was already under a lease When op signed their Lease. There was no non-compete clause to be concerned with when the other tenant signed their lease so the landlord cannot retroactively change it.

That makes the non-compete clause the op enjoys worthless when it comes to tenants that were there before op was.

 

[FlyingRon]

No, it does not make it worthless. It's not incumbent on the lessee to know what the terms of the other lessees are. The lessor put the non-compete in and is not in compliance. They have breached the lease terms.

 

[Zigner]

No, it does not make it worthless. It's not incumbent on the lessee to know what the terms of the other lessees are. The lessor put the non-compete in and is not in compliance. They have breached the lease terms.

...which brings us back, more or less, to https://forum.freeadvice.com/threads/enforcing-lease-addendum.647970/page-2#post-3558316

 

[FlyingRon]

Which brings us back to the "what relief would he like." He certainly has a strong case for recission. If he can determine monetary damage due to reliance on the lease exclusivity, he can likely recover that. About the only thing he won't do is exert any direct pressure on the other lessee (though perhaps the landlord would negotiate that in order to avoid the other legal action).

 

[BobGG]

The other tenant was already under a lease When op signed their Lease. There was no non-compete clause to be concerned with when the other tenant signed their lease so the landlord cannot retroactively change it.

That makes the non-compete clause the op enjoys worthless when it comes to tenants that were there before op was.

Yes , our intent for adding the addendum to our lease was for any incoming tenant because at the time of us signing our lease they ( take-out ) did not sell ice cream or any kind of dessert items at that time . During the time we have occupied they have expanded to two other units . They started selling / advertising ice cream when the first additional space was added. We notified the LL and they stopped selling their product. Now the product they are selling is being advertised as " its not ice cream , its Shizzle " ( look up meaning on internet - good laugh ) .
We are in talks with the LL and have scheduled meeting. I am just preparing myself with all info that I can obtain. I still feel that the LL had an opportunity to enforce the non-compete with them when they expanded . We are not looking for anything other than simple courtesy ( if there is still such a thing ) .

 

[Zigner]

Once again, if the other party has no such restriction in their lease, then they can continue to sell their (whatever they want to call it). Your recourse is not against them. Any recourse you may have would be against the LL, and that brings us, once again, to https://forum.freeadvice.com/threads/enforcing-lease-addendum.647970/page-2#post-3558316

 

[LdiJ]

Once again, if the other party has no such restriction in their lease, then they can continue to sell their (whatever they want to call it). Your recourse is not against them. Any recourse you may have would be against the LL, and that brings us, once again, to https://forum.freeadvice.com/threads/enforcing-lease-addendum.647970/page-2#post-3558316

Just a point...the other party expanded their space, therefore causing new lease(s) to be written. A party cannot take addition space without new lease(s) being written. So, there should have been a restriction listed in the new lease. If the landlord messed up that, its on the landlord.

 

[FlyingRon]

Just a point...the other party expanded their space, therefore causing new lease(s) to be written. A party cannot take addition space without new lease(s) being written. So, there should have been a restriction listed in the new lease. If the landlord messed up that, its on the landlord.

Why not? It's certainly not the case in general.

 

[LdiJ]

Why not? It's certainly not the case in general.

Yes, it absolutely IS the case in general. Commercial landlords do not increase a tenant's space without requiring the tenant to sign a new lease, or at least a brand new separate lease for the additional space. It would be absurd not to do so.

 

[FlyingRon]

I fear you do not understand what that word means. I've had commercial leases for close to three decades. We never changed a lease just because the square footage changed. Now if the landlord wanted to take more money...