The general terms and conditions (according to the model of the ROZ Real Estate Council of the Netherlands) stipulate that the tenant must always notify the landlord in writing of any changes or additions that the tenant wishes to make or have in, on or to the property, such as name signs, advertising, signage, notices and so on. The landlord has the right to issue regulations for such changes or additions, for instance with regard to their execution, location, size and choice of material.
The Arnhem/Leeuwarden Court of Appeal recently heard a case (3 June 2014, ECLI:NL:GHARL:2014:4328) in which the landlord had originally approved a design for illuminated signs (wall advertising) for the property. At a later stage the tenant, however, adapted the original design to improve the view of passers-by on the business premises and reapplied to the tenant for permission to alter the wall advertising sign (in accordance with the general terms and conditions).
The landlord did not grant consent because the wall advertising was supposedly excessive and dominant for the area. Moreover, the advertising was said to block the line of sight on the neighbouring properties. The landlord also held that the sign was sticking out too far from the exterior wall. The tenant argued that the landlord was wrong to refuse cooperation in the wall advertising and was thus restricting the tenant’s enjoyment of the property (which in the tenant’s view meant that the rent should be reduced and the loss of earnings compensated). The Court of Appeal did not agree.
The Court of Appeal held that upon entering into the rental agreement the tenant was aware of the location of the premises and the wall signs attached to the canopy. At that time the tenant could expect the landlord to consent at least to the wall signs as installed by the previous tenant. The tenant did not submit any facts or circumstances showing that the proposed wall signs would draw more customers from the passers-by in and near the shopping centre and would thus generate higher sales.
The Court of Appeal ruled that the mere circumstance that a particular type of advertising is more visible is not enough to justify the assumption that more passers-by will enter the business premises. Conceivably, not just the visibility of the wall advertising is relevant to pulling in customers, but also brand recognition, the presence of competitors in the shopping centre and the location of the premises in the shopping centre.
If you as a landlord would like to prevent wall advertising signs from being installed, you have ample leeway to grant or withhold your consent. However, you should also take into account the justified interests of your other tenants in the shopping centre and the possible impact of the wall advertising on the image of the shopping centre. Also to be considered are the tenant’s interests in installing the wall advertising.
Fiona Sassen
sassen@slangen-advocaten.nl
9 September 2014
