hi;
landlord signed a lease allowing me to open a cafe in shopping center
where someone else had the exclusive rights to sell the product which
my cafe was selling. Due to personal reason, i have been trying to
sell my cafe for quite some time but unable to do so because this
issue. The other tenant has complained to landlord and also will be
filling a lawsuit against the landlord which can take long time to
solve. Landlord faxed me 2 same letters (complaint) in last 6 months
which he received from the other tenant regarding the us selling the
simmilar product which they have exclusive right to and landlord
verbally has  to told me to fix the problem (he has not written any
notice to me; even though my lawyer requested him to clarify his
position with no response from him).  Due to the complain from other
tenant which must be disclosed to new buyer it has virtually became
impossible to sell the business and causing lease problems. Now, can i
leave and take action against the landlord, it has been may
months.............and nothing has been solved. With landlord going to
be in lawsuit which could last long time, not allowing me to sell..
 I do have a lawyer and he did send a letter to landlord to fix the
issue but my lawyer does not get invloved with lawsuit.........? but
do i have a legal case against the landlord such as fraud or
something.... either way..thank you

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Request for Question Clarification by weisstho-ga on 29 Jun 2006 12:52 PDT

Odd that your attorney won't take case. 

The issue that is in your favor is "WAIVER" in that the lease
condition was actually, and constructively, "waived" by the landlord
when he allowed you to open your store when a competiting store was
already in the center.

The other store's cause of action exists against the landlord - they
allowed you in. Now, "shame on you" for not seeing that provision in
the lease agreement and investigating it, but you won't be liable in
that action.

All that the landlord can do is seek to evict you. Landlord can seek
liquidated damages for early termination, but the judge won't give
them those damages (probably)on the theory that the landlord dropped
the ball be allowing you in.

As legal issues go, there are few issues more difficult than contract
/ lease / landlord-tenant. You need an attorney.  At that very least
that attorney needs to send a letter to landlord claiming Waiver of
Condition and establishing your right.

weisstho-ga

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Clarification of Question by wildzx-ga on 29 Jun 2006 15:27 PDT

oh..sorry for the confusion...my attorney has the case but he does not
get invloved with ligation process for filling law suits (he has
retired from that). We have already asked the landlord to clarify his
position in writing but he has not done so and another letter stating
he needs to fix the issue within certain time frame? landlord has
faxed me the complaint letters he received from the other tenant and
verbally accused me that it is my fault and i need to fix the issue?
with lawsuit being filled from the other tenant against the landlord,
this will make the case go for months or years?

Hi widzx, 

I?m not a lawyer and this does not constitute legal advice in any
manner. That said;

You don?t have a leg to stand on.  A landlord rents you a premise for
you to do business in, while he and other legal requirements may
dictate what type of business you will conduct, you do so at your own
risk. It is up to you to find out before the fact, if you would be
infringing on the ?exclusivity rights? anybody else may have on the
territory, furthermore it is up to the franchiser to let you know the
territories where you can establish your business. If you did
establish a business were you violated the exclusive rights of another
franchisee although the franchiser gave you this information before
hand, it is you the one that stands to lose in court.

From what you?ve stated you have no legal claim against your landlord,
the other franchisee has a legal claim against you and so may the
franchiser of the coffee brand. You certainly stand to loose your
franchise and all monies paid for it thus far, if you don?t remedy the
situation amicably with the other franchisee, soon.

Best of luck,

Eli

When the lease was signed, i was not aware of the exclusive rights
were already given to another tenant in the same shopping center/there
was not way of me konwing this fact? The landlord allowed me to make
the improvements  and  to sell the product in my new lease without
putting any provision or limit in the lease. Also, this is not a
franchise but the other tenant is? how does the other franchisee has a
legal claim against me; since my lease allowed me to sell simmilar
product? is landlord not in default, it has been 9 months and no
solution has been provided to fix this?