I have owned a removal business for three years and have had many goods given me from customers. So in March we decided to open a second hand shop and sell these rather than give them away. The street we chose was in a very deprived area where the old high street was vertually closed down. There were twenty shops with only three open. When we saw the landlord about a shop we were asked what we would be doing, and I told him a second hand shop as there were no others around. He informed me he would only allow one of each shop in the street so if I opened it up he would allow no others to open another. With this I went into a three year lease. The next door to the one I took was a ladies fashion shop and we got on well to start with, until of late she has started to sell second hand goods. I told her that this was wrong as I was the second hand shop, and by the way she has the same landlord. I confonted the landlord about this and he told me she could sell what she wants as long as he gets his rent. It has started to affect my trade very badly and some weeks I dont even make the rent. The landlords rep. came into the street last Friday and I pulled him about this as did another shop keeper who has a baby shop, and next door is also selling baby clothes. He stood in the street in front of four other people and re-itterated he would only allow one of each business and her would have a word with her. I telephone him on Monday and was told she could sell what she wants as long as she pays her rent. I asked him if I could get out as it was putting me into debt and was told that if I left the shop they would sue me for the three years rent plus costs.I dont know what to do! Has he broke a verbal contract giving me a get out ?
The law is going to depend on where you are located - country and state/province can make a difference, and even city laws can come into play. It may also depend on what your lease says precisely. Also, you should note that the posters here at DP live all over the world and most are not attorneys, so the advice you will get here may not apply to you and could very well be completely wrong. But you asked, so IANAL, but my gut feeling is that you won't be able to cite landlord's assurance as a binding agreement since your landlord didn't put it into writing. You may be able to negotiate your way out of the lease, however, so consider maybe trying to have it changed to a shorter term. Your best bet, I think, would be to contact a local attorney who specializes in real estate and housing-related issues. He would be able to tell you whether you have a legitimate case to break your lease. That said, you might want to consider working with your neighboring shops, instead of against them. Promote your block as a destination for bargain hunters. That's done all the time with high-end second hand stores (AKA antique shops).
Most courts prohibit oral lease agreements on a commercial lease that is longer than one year. A written contract would generally replace any verbal agreement. Always get any lease agreements in writing.
Like said above, it depends on the state / county / city that you are in. Most courts don't honor verbal contracts unless there is some proof that this was said. Maybe talk to the other shop owner that is also being affected by this, the more people that own stores on that street and also claim that he had said this is looking better for you. Good luck with your shop!
Not sure what point you are making. Courts wont honor a written contract without proof either. Oral contracts are just as valid as written contracts. As mjewel pointed out there are certain contracts that must be in writing. This is called the Statute of Frauds. It is a complicated legal rule that requires certain types of contracts to be in writing to be valid.
Then explain to me how there is proof of this oral contract? With a written contract you have physical proof (the paper) of the agreement.
Sure, there can be all sorts of proof. First, there is your own testimony. Second, there might be a witness to the oral agreement. Third, there could be actions taken by both parties consistent with the oral agreement. Forth, there could be actual or partial performance of some aspects of the contract. Fifth, there could be emails or other evidence referencing the contract, even though no signed contract was ever executed. There are an infinite number of ways to prove things. Proof can be any fact which tends to support the conclusion. For example, let's say I make an oral agreement with you to trade my car for your boat. I transfer the car to you, but you never give me the boat. I would sue you and allege the oral contract. I would show that I gave you my boat and got nothing in return. I will also show how I paid for a trailer to tow the boat and I contacted an insurance broker about getting my new boat insured. The agent will testify that I told him to remove my car from my policy and that I wanted to add a boat that I had traded for. All of that would be evidence of the existence of an oral agreement.
Second hand goods is not something trademarkable or copyrightable, unless it is like 'you invented second hands goods can be sold for money to make profits'. So it cant be mutually exclusive. She can sell whatever she likes because she pays rent for it and its her place. You cant control it.
This has nothing to do with trademark or copyrights (and you don't copyright products anyway). Landlords can certainly grant exclusives in their tenant mix. I've sign over 150 commercial leases and read every one (some were over 80 pages) and every single one had wording that negates any oral representation or agreement that is not expressly contained in the lease. Everything should be in the lease/rider. You could have a witness to the landlord stating something, but if it isn't contained in the lease, that doesn't void it - however, it may give you grounds to sue the landlord for fraudulent misrepresentation. The timing of the statements would also be a factor. Saying something after the lease was signed is a lot different than before, and there isn't any consideration from the lessor. The OP needs to take his lease to an attorney for review and advice specific to where the premises are located. While you may be liable for the total term of the lease, landlords can't just sit on the location and refuse to lease it to someone else and just collect rent. They are usually allowed to require you to guarantee the new lease for the original length of lease. Most lease problems like this happen because the lessor didn't want to spend some money having the lease reviewed by an attorney. Landlord leases in their original form are completely one-sided and meant/expected to be modified. I've never had a lease that wasn't modified. Simple changing on wording from "gross leased" to "gross leasable" can have a huge financial impact on CAM charges. Signing a Landlord lease without any changes is like buying a car at full sticker price. One way to minimize exposure is to have a short term lease with option(s) to renew, right to terminate with 6 months notice, or a buyout provision.
I normally don't tell people to call a lawyer, but in this situation you probably don't have any other choice if you need to get out of this lease. As has been said, a competition clause in the lease would have given you an argument. And on a side note, I highly doubt that a second hand section in a clothing store is putting your store out of business. There has to be a more reasonable explanation for your devastating loss of income. Take a closer look at your inventory and how much time it spends on the shelf. Second hand shoppers like to see a high percentage of new inventory on each visit. The two stores near me throw unsold goods in the dumpster after a few weeks.