The Law

Sign of Trouble by Ron Davis “Share and share alike” is the directive that applies in a controversy over use of an advertising sign at a New Jersey shopping center. The shopping center is located in Toms River, and the controversial sign is supposed to advertise the retail tenants that lease space at the center. But the center is divided into two separate buildings, one leased to one company and the other owned by another company. And the company leasing its building apparently believes it has exclusive rights to advertise only its tenants. In fact, the position of the sign is on the leasehold property, and the lessor therefore assumes that its neighbor has no legitimate claim to the sign’s usage. That assumption has met with a challenge by that neighbor. The history of the sign, however, dates from a time when the shopping center’s primary occupants were a unit of the A&P supermarket chain and a Kmart store. The A&P lease allowed that tenant to erect “at its own cost and expense its logo on the sign to be erected by others at the location.” But the rights to usage of the sign could also include Kmart’s “identification.” Despite the rights granted the Kmart successor, the controversy has resulted in a court trial, with both parties asserting their rights to the sign. The A&P successor claims that after the two current landlords took control of the shopping center’s management, the sign remained under its control. The successor to the Kmart building disagrees and maintains that assignment of rights to the advertising sign stem exclusively from the previous owners’ authority. A New Jersey court agreed with the Kmart building owner’s argument, ruling that the rights to the advertising sign do from that assignment. The successor to the A&P building appealed, stating that a “newly discovered” document had turned up. That document supposedly grants the A&P successor exclusive rights to the sign “for advertising purposes.” The successor to the Kmart building challenged that document, arguing that it “had nothing to do with signage and nothing to do with the Kmart lease.” Moreover, the successor to the Kmart building pointed out that the so-called newly discovered document had been available throughout the legal proceedings, but was never applicable nor constructive. A New Jersey appellate court agreed, explaining, “The language expressed by these agreements is clear and unambiguous and, taken together,…grant a right to [both parties] to have their businesses included on the sign.” Added the judges, “Simply put, the argument that rights to the sign were granted solely by virtue of the A&P lease is not true.” (Raven Associates—Toms River v. Holualoa Toms River, LLC, 2012 WL 2282845 [N.J.Super.A.D.]) Decision: June 2012 Published: June 2012