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Sign of the Times
by Ron Davis
A battle over a tenant's advertising sign at an Oregon shopping center has ended in a solid victory for the tenant and a tough defeat for the center's owners.
The shopping center, located in Grants Pass, leases space to the tenant for the operation of a second-hand store known as Mr. X's Swap Shop. And the battle over the sign occurred after the owners of the shopping center and the tenant decided to amend their lease agreement when the tenant closed part of his business.
The terms of the amended lease do not address the sign or the signpost that displays the sign. But the lease terms do provide that the tenant retains control over the portion of the grounds to the east of the second-hand store. And the signpost and sign are located within that portion of those grounds.
Soon after execution of the amended lease, however, the shopping center's owners decided to remove the tenant's sign and put up one of their own. And when the tenant balked, they argued that they had that right, since they actually owned the signpost.
And a local court agreed with the shopping center's owners and gave them control over the signpost and the signs displayed there. The tenant appealed. The Oregon Court of Appeals, in reversing the local court decision, explained, "If a lease contains no explicit reservations in favor of the landlord, the landlord has only the right to enter the premises to make repairs and to collect rent. In all other respects, the lessee retains the right of exclusive possession. Thus, contrary to the contention of the shopping center owners in this case, the fact that the lease does not mention the signpost suggests that the tenant has control over it.... Moreover, we conclude that the signpost is a fixture. Because a fixture is considered part of the realty itself, any tenant who has an exclusive right of possession to the portion of the property on which the fixture is located also has a right to the exclusive use of the fixture for the duration of the tenancy." (7 P.3d 675 [Or.App. 2000])
Decision: July 2000
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