These cufflinks are an ideal add-on to a card purchase. The pair on the left are an ideal graduation gift for a male while the pair on the right make a nice Father’s Day gift. Some newsagents in major shopping centres are facing a challenge from their landlord when they try and add items like cufflinks to their gift range since their leases do not explicitly state that they can sell gifts.
All it takes is a complaint from another tenant to get the landlord interested. In my experience, the landlord tends to side with the more valuable tenant.
I have see situations where the extent of gifts is the store is explicitly limited to a percentage of turnover or floor space. I have seen the same restriction on confectionery and even books – all traditional lines for newsagents.
A permitted use clause which states that you can carry traditional newsagency lines could be problematic at some point as it is open to interpretation as to what constitutes traditional newsagency lines. In one case recently, the landlord said that books were not a traditional newsagency line. The cost of mounting a case to prove otherwise was considerable.
In today’s rapidly changing marketplace, newsagents need to negotiate an appropriately flexible permitted use clause in their lease. That said, landlords need to be fairer in managing permitted use. I bet Australia Post did not have greeting cards, gifts, books and even BBQ sets covered in their permitted use clauses yet there was probably no push back.
How can they structure the lease like that after deregulation? What bullshit.
Supermarkets and other shops can sell everything we sell.
I bet AP don’t have to follow any rules either.
off topic but is there a peoples friend and my weekly for this week ?
gotch have been all over the place with internationals for the last few weeks. my bet is wednesday for peoples friend
yeah just downloaded mondays files and they are with it . just love communication in this industry . it dosn’t matter when you have 10 people to come in from as far away as 50 ks to pick up there mag that is on order and you have nothing to say to them .
Special usage clauses in leases are not enforceable by law however the joke is that landlords choose to use the subject as a position of strength when it suits.
To test the circumstances if ever one is confronted by the position of exclusively ask for it for store. it is then that you will find the landlord will give you one hundred reasons (legally) as to why they can’t grant it to you.
Why doesn’t your association get together and make a schedule of traditional newsagency lines. How old is tradition? If every, or a majority of newsagency has gift lines, it becomes a tradition, or standard line. Or get the association to back this sort of stuff in court. A single newsagency can’t afford it, but a group of newsagents would be so strong the landlords would think twice about this sort of rubbish. Get together and get strong. Landlords are picking you off one by one, as well as some other troubles you all have, and what are your fees for? Beats me. A small investment by many newsagencies would make so many more a higher profit business.
Clem newsXpress does this and I expect that other marketing groups do as well.
Clem,
Mark’s claim I am not sure of what “newsXpress does this,means” if it means that it provides centre management with a list of traditional lines then this amy be so and to add they all have this Associations have provided them with the same list for years. If Mark is syaing that newsXpres can get “exclusivity” clause that stand up included in the newsagents lease then this is misleading. Mark needs to spell out just what it is that newsXpress does get from Shopping Centre management that is exclusive to them
For Graeme, Clem said: Why doesn’t your association get together and make a schedule of traditional newsagency lines.
newsXpress does this.
Thanks for clarifying that for me Mark.
Clem Associations have done this for years. It means nothing much anymore to Landlords as the ACCC disallows anti competitive practices, at least that’s what the Shopping Centres say when challenged, yet when newsagents apply for new categories the same landlord will say no that interferes with so and so. The argument is not winnable all you can do is test it.
Graeme,
I had an issue last year with my landlord, he denied me the ability to sell phones citing not traditional. I gathered the evidence from newsXpress and the QNF and he relented based on that evidence. I’m thinking now that the definition of traditional in this context means the majority. Show that the majority of agents do it and the objection seems to fall away.
I agree as I said you have to challenge it they just can’t say no however they will and try to bluff their way through. Recently a newsagent put a very large bookshop withi a newsagency with the promise that hey would not allow another bookshop to open within the centre 18 mos. later they allowed Dymocks into the centre. There was nothing legally the newsagent could do about it as it aws a restraint of trade in the first place and whilst the centr management have a desired retail “Mix” of stores and products they do what suits them at that point in time. The classic is when a new section is to open and they won’t commit to the newsagent whether they will have another newsagent open of not. It largely depends whether they get enough tennants to fill the vacancies created whether they turn to duplicating the outlets or not. All they really care about is having the centre leased. It is always a good idea to have the wording communications in the usage clause that covers almost all the extensions of our products into electronic media without being too specific. Play them at their own game.
Exclusive use clauses are not ‘illegal’. Frowned upon, yes, and certainly actively discouraged by the ACCC. They can be illegal if they can be proven to be anti-competitive (which is why the ACCC doesn’t like them). The ACCC came to their position on the issue because Coles and Woolworths were using exclusive-use clauses to stop landlords leasing premises to competing supermarkets. If you could prove that an exclusive use clause was not anti-competitive I’m not aware of any new laws that explicitly prevent it.
Jarryd, you’re talking double dutch again.
The case is clear it was possible to state by the ACCC that it WAS anti competitive.
I eas pointing out to those who blogged and others that this is deemed illegal and so it is What’s your point technically you are correct versus the ACCC? Go for it my comments stand.
Jarryd, I agree. That said, I do not see an exclusive-use clause being all that relevant to the future of the newsagency channel in shopping centres.
if my landlord can put 1 or 10 more newsagents in my shopping center , they bloody will as long as some donkeys willing to pay the rent.
Eric You are absolutely correct
Graeme,
The ACCC’s review and subsequent recommendation was based heavily on the exclusive use clauses found in the contracts of Coles & Woolworths. The ACCC don’t have the power to make law, only interpret it. They are obliged to judge each contract on an individual basis and therefore can’t make a blanket ruling against all forms of exclusive use clauses.
Almost all exclusive use clauses as they exist now would be anti-competitive. However if one could prove that their particular clause was not then there is no law preventing it.
If an exclusive use clause was tied to some measure that ensured competitiveness (eg. an independent sustainability of competition review) then I see no reason why it would be illegal.
Jarryd, Iknow what you are saying having been involved deeply with the TPC from 1974 before it became the ACCC. Your comments are in part correct especially ‘ “therefore can’t make a blanket ruling against all forms of etc” are you saying that thay can or can’t make a ruling against exclusivity – well they did when they ruled the newsagents territories exclusive and therefore anti competitive. and that they can condine exclusivity or rule in favour of exclusivity mmm. very interesting I would love to seee a live case of such apart from Govt owned services such as the Post Office. Railways etc or contracts that the Govt has granted or passsed by law.
Without chasing that that particular answer it’s fair to say once again that it is illegal to have exclusivety clauses enforced in shopping centre, because it is anti competitive-check it out with the ACCC if you like and of course they don’t make laws they enforce them with huge fines for those that break them though.
Graeme,
Sorry I should been more clear in that statement. I meant that the ACCC can’t make a ruling against all varied concepts of exclusive use clauses. If they found an exclusive use clause that came with provisions that ensure competition they couldn’t rule against it because it wouldn’t be anti-competitive and therefore wouldn’t be breaking the law.
In the case of newsagent territories they made the ruling on what were identical industry standard contracts.
All leases are not identical contracts. The ruling for the use of “exclusive-use” clauses would apply only to all traditional uses of the clause that provide no measure to ensure competition.
Jarryd, I take your point.
About the newagency authorisations now there were differences in the State bt State authorisations. QLD and NSW had resellers agreements and the rest were Principlal and Agent contracts- We got done over however it is now water under the bridge.