Issues with the lease

kulture said:

It really does not matter who is behind this. What matters is what is written in the lease. It may refer to the business plan, or it may simply list your activities, or it may not mention use at all.

The fact that you have not changed use may be relevant. All that said it would be a good idea to go over this with a commercial solicitor, not least because you have changed premises and not updated the lease.

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Hi Kulture

We signed a new lease which is identical to the old one, just with the address of the new premises on.

jules12345 said:

This maybe the important bit - if the cafe has a clause on their lease suggesting that the landlord must not rent out a property in their possession for the purposes of a cafe and within say 1/2 mile from their cafe, this is what the cafe owners maybe objecting to.

Have you clarified with the Landlord ... ? The landlord maybe trying to cover a term in the other peoples lease (the cafe) and as such just making sure you are not going above and beyond what you are allowed to do.

What class is the premises by the way - it is licensed/registered to sell beverages. The Landlord may also have had a letter from the council. It should be on your lease.

Hope this helps. If it is an incorrectly classified premises you will be stopped from operating and selling drinks or the business activity that is in breach.

Kulture says you can do whetever is in the lease and this is correct but you may also be able to do what ISN'T in the lease is some circumstances. In regards to the classification property, if it is classified as say an A3, then you are in your rights to use it as a restaurant, why a LL would stop you is beyond my powers of reasonning.

In commercial properties - rents are adjudicated in regards to classification for obvious reasons.

regards
Jules

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Thanks Jules

I'll take a careful read of the lease. There is no problem with planning or environmental health. They have been helpful and supportive.

We dont serve meals and dont need a Class 3 (Which is a restaurant in Scotland) We are allowed to sell coffee and prepackaged food in a Class 1 premises as a ancilliary activity and planning have confirmed this. We confirmed with planning when we were in the previous premises too. We found that approaching the local authority rather than waiting for them to approach us made all the difference.

This is not a classification issue, but rather something that has made the landlord perk up and pay attention. Rather ironic because our landlord is technically the local authority (An arms length company set up by the local authority) who in all other respects have been very helpful.

The regeneration plan indicates that the area is actually allocated more "eateries" as it is being redeveloped, so I'm unsure that our proximity is necessarily relevant, but I would not dismiss your suggestion and wold certainly investigate it further.

I have noted however that we passed environmental health inspection with flying colours, Our cafe neighbour does not have an inspection on record.

jules12345 said:

No wee snails in the lemonade I hope... lol. Or snails wee..!

Regards
Jules

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Thanks for the humour, it makes such a difference, especially since all we're doing is trying to make a living!

The saga continues.

After we responded to the landlords letter insisting that we are doing nothing different to before, we have had to involve the police because our neighbour at the Bistro was distressing some of our customers with homophobic behaviour (we are a lesbian couple) and similar acts of hate. (I would rather not give details on a public forum) The liasion officer has said that based on his behaviour he is already risking a charge of incitement to hate crime.

I have a serious disability and have an assistance dog (registered with an EHRC card). The only people who see this dog are only those who see us coming in the morning and going home in the evening, The dog remains in the workshop with me and leaves only for us to take her for toilet relief (she goes to the toilet on command as she is trained this way)

Environmental health received a complaint that we are keeping a dog in the food preparation area. The dog has never been anywhere near the food prep area and always remains downstairs with me in the studio, away from the customers and away from any food/hygiene areas as well as our customers. The officer took one look at the situation and told me she believed this was a malicious complaint. I read the mobile phone number off the complaint sheet that she had in her diary, (Upside down and no real effort to hide it) called it the moment she left the shop and no guessing as to who answered the phone!

Ten days ago, we received a reply (two months after our reply to their first letter) from the landlords agent, stating that they knew we sold coffee and small eats to our customers previously, but have now decided that we may not do so on our new premises. There is NOTHING in the lease that says that we cannot sell any sort of food. It is a very generic run of the mill lease document and it clearly involved them filling in the spaces to print off the document. I replied telling them that they were aware of our business activities and if there was a problem with us continuing with any aspect of our business practice at the new premises they had an obligation to inform us of this prior to assigning the new lease. I also stated that if they intended to take action to prevent us from conducting our business as normal, we would consider pursuing compensation.

Furthermore our problem is definitely not with the local authority. We went to the safety services officer at the council on the recommendation of the senior liasion officer at the police, because the police believed that the owner of the bistro has been using complaint mechanisms within the local authority and the landlord to harass us even further.

The safety services officer asked me what I wanted to happen and I said that I wanted the representative from the arms length body landlord who deals with anti social behaviour of commercial tenants and social problems within commercial leases to meet with us and help mediate a way through this. We don't believe the agent is relaying the whole picture. We don't want war, we want to play fair using all the mechanisms available to us before having to take this to court. Safety services have established that neither planning nor environmental health have a problem with our business.

We received a letter today from the landlord's agent stating that they would seek to enforce the lease if we do not stop selling food and drink immediately. We feel that if we do, it will be acknowledging their position and place our case at risk. They also claim they will come and inspect us without appointment. This could seriously disrupt us especially since we are running exhibition events this month.

We have been advised that our landlord will have to take us to court to enforce anything and we will then have an opportunity to present our case. We have informed the landlord about the problems with the other tenant and that there is a police investigation, but they are blanking it. We are trying desperately to mediate but the landlords agent is intent on sending us these nasty letters.

It has also been suggested that we consider including coffee and cake in our lecture/class fees as a work around and offer it as a free extra as well as offer free coffee to people who buy a pair of stud earrings. It is cost effective for us to sell a pair of plain glass studs at £1.80 and offer a free latte. Free bacon roll with lecture class registration etc...

We have extensive legal insurance and will use this if need be. We will be instructing this week. Is there anything that we should think of or maybe have not considered in all of this? After all lawyers are only human and can only consider the information they are given. We don't want to miss something that could be critical. We have located alternative premises, however we have contractual obligations (with clients) that mean we cannot move before Christmas. Its ten weeks to Christmas and legal wheels in our experience turn slowly, I've reached the point that as long as we can keep going til Christmas then we'll leave.

The closure of our business will impact directly on three local charities. It will impact on the local business participation in a police safety initiative and the local authority will lose a social enterprise service that essentially they get free and would cost them twice the value of our annual lease elsewhere. It will also result in several job losses and loss of outlet for five local artists - that's a direct impact on jobs for seven people and twenty five seasonal workers. In the context of the current economic climate I find it hard to believe that the local autority would voluntarily let this happen. I have no qualms about issuing a press release should it go this way.

In closing, coffee and cake is ancilliary - not our primary business but very much part of the character of our business and the other arts based organisations in the area operate on a very similar model. It is a notable characteristic of the crafts and arts business in our part of the city. We sell about £6 worth of coffee every day on average. (Which cafe could survive doing that?)

When we sell more than £6 its usually to our morning or evening customers when the Bistro is shut - he closes at 4:00 in the afternoon and opens after 8:00 in the morning, we're open from 7:00am to 10pm. We keep records of food and glass/art sales separate for record keeping and planning purposes, so we can prove this. I believe that the local cafe is blaming us for the impact that the economic downturn is having on him, which has nothing to do with us. We have also just discovered that he is trying to sell his business and has had it on the market at least from the time we moved around the corner. Until recently we were sending him him customers on an almost daily occurrence. We put a stop to this last week.

Any advice on what we should remember to cover when we meet with counsel or even comments or jokes about how ridiculous this whole thing is?