VvE must tolerate New York Pizza advertising and delivery bikes

Association to tolerate New York Pizza advertising and delivery bikes

A Owners Association (VvE) in the Amersfoort area is experiencing nuisance from an establishment of New York Pizza. The delivery restaurant is located in one of the apartments belonging to the VvE. The nuisance is caused by scooters and bicycles blocking the entrances, smells of pizza and smoking delivery drivers. In addition, residents complain about litter being spread around. The VvE is done with this and forbids the owner from placing advertising on the facade for this reason. The subdistrict court agrees with the VvE, but the court rules in favor of the store owner. Estate planning law attorney Robert van Ewijk explains why New York Pizza was allowed to advertise anyway, despite the nuisance.

New York Pizza advertisement is “hideous” according to VvE

The residents are very upset that a New York Pizza has come to the complex. Previously, a branch of Medipoint was located in the store space and they hardly experienced any inconvenience. Although the advertisements New York Pizza wants to place are about the same size, they are “hideous”, said the VvE. This is because it involves luminous advertising with bright green letters and a red pizza point. Moreover, advertising causes more business to come to the pizzeria, and the VvE does not want that. Therefore, the VvE refused permission of the advertisements desired by the pizzeria.

Court of Appeal: restaurant may simply advertise

The court whistles back the VvE. New York Pizza may simply conduct a business in the retail apartment and advertising is simply part of that. Moreover, the advertising in itself is not disruptive or annoying, for example because it flashes or shines brightly. Moreover, the court of appeal does not see any substantial difference with the advertising that Medipoint used and with which the VvE had no problems. Therefore, the court finds that the permission for advertising was denied without reasonable cause. New York Pizza therefore receives a replacement authorisation for that. This means that the court's ruling replaces the consent that should have been given by the CoE meeting.

Delivery drivers and visitors may place bicycles on common area of the CoE

Then the bicycles of delivery drivers and visitors. These too are an eyesore for the VvE. But in this respect, too, the VvE is missing the boat. Again, the court found it relevant that New York Pizza must be able to conduct its business in the retail space. And just as advertising is part of this, so are visitors and deliverers coming and going. They will therefore also be allowed to place their bicycles in the common area of the condominium. Especially since it is designated for bicycle storage. Not in the deed of subdivision, but in fact, because the space has been used this way for years and, in addition, bicycle racks have been installed.

Use bicycle parking permanently and exclusively?

The VvE counters that New York Pizza is not entitled to an exclusive or permanent right of use, but the Court of Appeal also dismisses that argument. New York Pizza will not occupy the retail space forever, so the use is not permanent. Further, the use is not exclusive because residents can still use the bike parking as well.

What about the nuisance?

In short, the CoE therefore has to tolerate the advertising and bicycles. However, this does not mean that the VvE must also be satisfied with the perceived nuisance and inconvenience. However, the court points out that banning advertising and bicycles is not the appropriate route for this. Against nuisance and nuisance must be acted upon through the rules of the subdivision deed and by-laws.

Lawyer in dispute over hospitality industry in CoE

Is your CoE or business in a similar situation? If so, please contact with the VvE lawyer at Lexys Lawyers.