Harvard vs. Kmart

Harvard University, unsuccessful in its efforts to buy Kmart out of a Brighton lease as it expands its campus in the area, is using hardball tactics to try to evict the discount store.

Kmart Corp. executives said this week they have rarely encountered such aggressive tactics as Harvard and its lawyers have used to try to oust them from their 85,000-square-foot Big Kmart store on Western Avenue.

Kmart's presence could be in the way of the university's plans for a 200-acre science-oriented campus with housing and other commercial uses for the Allston campus and part of Brighton where Kmart is located.

In 1999, Kmart took over from Caldor a lease that extends to 2029, executives said.

But Harvard says the lease is invalid because of violations. "Despite Harvard's requests, Kmart failed to comply with the requirements of the lease, and the lease expired," said a Harvard spokesman who asked not to be identified.

"Currently, Kmart refuses to vacate the premises," the spokesman said. "The matter has been the subject of expensive litigation, which is now pending."

When now-healthy Kmart was in bankruptcy in 2002, Harvard approached bankruptcy attorneys about buying the lease, executives said, but the university offered only a fraction of what the lease is worth. A later offer was larger, they said, but was still well short of what the company would earn by operating the store -- the only one of its type in the area.

"We're not even close on price," said one Kmart executive, who asked not to be identified. "They're pursuing an alternative strategy of trying to drive us crazy with legal maneuvers and shenanigans."

According to Jon Gieselman, Kmart's vice president for advertising and public relations, the matter is now in court.

The landlord for the popular store, located along with Shaw's Supermarket and some empty spaces in the Brighton Mills shopping center, is the president and fellows of Harvard College, Kmart executives said. Kmart Holding Corp. holds the lease.

After Kmart declined Harvard's offer to buy out the lease, "They started pursuing every trick they could to kick Kmart out of the store," said a second executive.

Harvard accused the store of failing to pay maintenance charges on time, the executives said. Harvard would send bills without full explanations for the charges, and Kmart would pay a portion -- "and they sent a termination notice," said the executive. He called it "pretty aggressive stuff" and said Kmart had only had similar problems with a couple of other landlords among its 1,400 or so leases.

Harvard, which has an endowment of about $22 billion, also accused Kmart of violating the terms of its lease for selling certain food items, executives said. "We took all the food out," said the executive.

But the university is still pushing to have the store evicted.

The executives said Harvard tried to subpoena anyone at Kmart who had any knowledge of the lease.

In its offers to buy out the lease, Harvard has still offered the store only about $2 million, or less than Kmart believes it is worth.

"For us to run that store for 25 more years, it's worth a lot more," the executive said.

Kmart declined to say what it is paying for the space but said that after being level for a long time, the cost, tied to inflation, recently went up.

There were about 50 cars in the parking lot outside Kmart's front doors yesterday.

Customers who were interviewed said they'd be sorry to see the store -- the closest other Kmart store is about 8 miles away, in Somerville -- pushed out.

"It's a place where you can get low-cost items," Rita Mandosa, a lawyer, said as she wheeled a shopping cart to her car. She said she had come yesterday primarily to buy straight pins for sewing.

Kmart has a total of 1,500 stores, and the one at 400 Western Ave. is one of 19 in Massachusetts. The Western Ave. store is known for its low prices -- even lower in some cases than a Target store about 2 miles away, some shoppers said.

"Target's a little farther away," said Barry Goldberg, who works in Allston and visits the store occasionally. Goldberg had purchased a child's car seat and gloves for his son. And he said the shoes he was wearing came from Kmart.

Gene Vogel, leaving Kmart yesterday with her two grandchildren, Celeste, 8, and Tony, 6, said she takes the kids to Kmart regularly to buy clothes and toys, and has been to the Brighton store three times in the last three days. "I love Kmart," she said.

But it won't make much difference to Vogel if Harvard kicks Kmart out. Vogel, who lives in East Brunswick, N.J., will just continue shopping at the Kmart in her neighborhood.

She's only been in the Boston area this week because she is visiting her daughter, the children's mother. Their mother is at a teachers' convention. At Harvard.

Thomas C. Palmer Jr. can be reached at tpalmer@globe.com.