Expert: Jim Avancena, CPM - 8/26/2007

Question
We own a small business in a redevelopment area in a resort town.  Our business relies on a heavy seasonal flow of tourists.  Since parking is scarce, several entities, including our landlord and the City, signed a Parking Agreement.  We received a copy of the agreement when we signed our lease.  The City has violated the agreement (undisputed)to steer cars to their very expensive parking garage.  it has greatly affected business and one store owner went to small claims court and won.  He settled for a very small amount of money, hoping that the tactics of the City would cease.  The City is appealing with the argument that, since the store owner did not sign the agreement, he has no right to sue.  Do you feel that lease holders have any rights in a matter like this?

Answer
MaryAnn-
Clearly this is a matter that should be handled by an attorney, however, I will tell you what little I can that may be of help.

I am confused about exactly what has occurred.  There are many things that I do not know that would help.

You say that you "received a copy of the agreement when we signed our lease".  Do you mean that your copy of the agreement was made a formal exhibit to your lease, or that you were required to acknowledge - by your written approval- that you agreed to be bound by it?  What did the agreement provide?

What does your lease agreement stipulate about parking?  Does it specify certain parking spaces (unlikely) or identify  a specific area that is set aside for the customers of your shop? Or is your lease silent about parking rights?  Has your landlord told you specific things about where your customers can park?  Was anyone else present when your landlord told you those things?
 
A lease will often have provision generally referenced as the "compliance with laws" section that usually addresses other types of matters but may give the city the right to do certain things regarding parking that may supercede other lease provisions.

Additionally, if your landlord has not made reasonable efforts to protect your ability to provide parking for your customers that you were led to believe was part of the lease agreement and the parking agreement, then your landlord may  be in default of the lease.

If the other store owner you mention went to small claims court and won, and if the facts in your dispute are identical, you should perhaps consider making the same claim. You should find a means of quantifying your losses if you take your case to court.  If you don't have reasonable records to prove your loss, the judge might ignore your claim.

The lease holders may very well have a claim against either the lessors (Landlords) involved, against the city, or both, however it is essential that you, and perhaps the other tenants together, find an attorney to advise you on this matter.  Although the cost should be reasonable if you enlist several other tenants to join you in this effort, you may find that a Bar Association in proximity to your city has attorneys that would advise you in this matter at no cost; "Pro Bono".  Simply look on the Internet or yellow pages for nearby Bar Associations and ask the receptionist that answers to speak with who ever handles the Pro Bono services in the association.   Be prepared and organized in advance with the essential facts related to the matter.

Be certain to check your lease first for any language that specifically deals with your parking rights, although do not be afraid to seek help if your lease is silent about parking.  Your question intersects will several different bodies of law that may provide you with rights that you are not aware.  Landlord/Tenant law and Municipal laws may restrict the type of action that is injuring your business.

Finally, you may find that individual calls to the mayor or council members may provide you additional support in spite of the fact that the city has an expensive parking garage involved.  Perhaps you can contact anyone on the mayor and council that may have voted against the bill that authorized the city parking garage.  Do not give anyone any information regarding the others involved in your activities or any actions being planned.

You may find that you have no case after talking to an attorney.  However, the next time you are ready to sign a lease, be certain that all the arrangements that you were told by the landlord about parking are included in specific terms in your lease.

Good hunting for a pro bono lawyer.

-Jim