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by Ron Davis
An unauthorized attempt by a tenant of a New Jersey shopping center to expand her optician business has resulted in her eviction.
The shopping center is D&Q Plaza in Cherry Hill, near Philadelphia, PA, and the tenant, a Korean-American, is a licensed optometrist. But the terms of her lease limited her practice to that of an optician, a professional permitted by law to sell eyeglasses only.
As a doctor of optometry, however, she can legally perform routine eye examinations, diagnose cataracts and glaucoma, treat eye diseases, sell glasses, and refer patients for laser eye surgery. She said she leased space at the shopping center as an optician because the Korean language broadly defines an optician as someone who can perform the services of either an optometrist or an optician.
A clash over that definition arose when she started selling cosmetics at her store. Another tenant at the shopping center also sold cosmetics, and the terms of that tenantís lease gave exclusive rights to such sales.
When the optometrist tenant refused to stop selling the cosmetics, the centerís owner notified her that she had breached the lease and would be evicted. In response, she contended that the occupancy clause of the lease was ďambiguousĒ and should be broadly interpreted to permit a wide range of eye-care services, to include cosmetic sales. She added that she simply misunderstood the term ďoptician, which in her native Korean language describes the work she performs.
Finally, she argued that the centerís owner, by his past inaction regarding her business activities and the continued acceptance of rent, had modified the lease terms, permitting her to provide eye and skin care. She therefore sued.
A New Jersey appellate court, in ruling in favor of the centerís owner, explained, ďNo ambiguity in the lease terms preclude the enforcement of the stated use for services generally rendered by opticians or optometrists. No ambiguity in its terms permits the sale of cosmetics. From the evidence, we cannot conclude that the centerís owner either acquiesced to the tenantís use so as to make prospective enforcement unreasonable or waived the right to prospectively enforce the lease by accepting rent. The lease itself expressly provided that the waiver of a violation shall not be construed as a waiver of a subsequent violation.Ē (Han Yang Plaza, LLC v. Optical Center, 2006 WL 74130 [N.J.Super.A.D.])
Decision: January 2006
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