Harvard Aims To Evict Allston Kmart

After several years of conflict, Harvard University is pushing to evict a reluctant Kmart from its Allston location in a case that came before a U.S. District Court last month.

Citing Kmart’s failure to adhere to the terms of its lease contract with the University, Harvard filed to remove the discount retail store from the premises it currently occupies in the Brighton Mills Shopping Center in April 2003.

Kmart assumed the lease of the 70,000-square-foot space on Western Ave. in 1999.

“Despite Harvard’s requests, Kmart refused to comply with its lease and their responsibilities to other tenants,” Harvard spokesman Joe Wrinn said in an e-mail. “Harvard ... is exercising its fiduciary responsibilities to enforce the lease.”

“Kmart is continuing to try to delay resolution of this matter,” he added.

Kmart officials, however, said that federal bankruptcy law entitled the company to postpone repayment of the debts it accumulated to Harvard during its period of bankruptcy. Kmart, based in Michigan, filed for Chapter 11 bankruptcy protection in January 2002 and emerged from bankruptcy in May 2003.

During Kmart’s bankruptcy, Harvard attorneys engaged in negotiations to buy the lease for up to $2 million, Kmart executives told The Boston Globe on Friday. Kmart’s spokesman Stephen Phenani confirmed the statement but declined to comment further.

Kmart rejected all of the University’s offers, holding on to the lease and the Allston location.

When the two parties failed to reach an agreement, “[Harvard] started pursuing every trick they could to kick Kmart out of the store,” the executives told the Globe.

Harvard’s attorneys have also charged the store with breaching a term in the contract stipulating that the discount retail store may not sell groceries.

“Their actions are in violation of the lease.... They are selling food,” said Ed Reiss, Harvard’s director of University and commercial real estate.

Shaw’s Supermarket, which is located adjacent to Kmart in the shopping center, is also leasing its space from Harvard.

In a court statement, Harvard’s legal team accused Kmart of failing to pay tens of thousands of dollars in maintenance charges on time. The filing also cites the store’s “continued sale of groceries” in violation of the lease.

The team added that Kmart’s “refusal to honor [the conditions of the lease] is a clear indication of its inability to assure Harvard of future timely performance of its lease obligations.”

Kmart attorneys countered that bankruptcy law allows the company, under its reorganization plan, to renew the lease despite its alleged violations.

If Kmart wins the case, it will be allowed to continue occupying the space under its lease with Harvard. The lease expired last February and was planned to be extended until January 2009.

Many Harvard and Kmart officials declined to comment on the issue because of the pending litigation.

The Allston Kmart is situated across the Charles River from Harvard Yard, beyond the Harvard Business School. Target, a competing discount retail store, is located nearby in Watertown.

The dispute comes as Harvard continues to develop its plans for expanding the campus into Allston.

“There are no plans for building anything there at this time,” Wrinn said. “This is an ongoing and isolated issue, not related to any specific plans for use of that property.”

“Any proposals for development of any Allston property would include extensive consultation with our Allston neighbors and the City of Boston,” he added.

According to Wrinn, Harvard has not asked Shaw’s or any other businesses in the Brighton Mills Shopping Center to leave.