Deutsch, Levy & Engel

Adequate parking is an essential component of any viable shopping center. What is less obvious are the inherent, enforceable rights that tenants may have in access to parking for their customers and business invitees. These rights may arise without any express language in the tenant’s lease. Accordingly, a shopping center must always be careful when considering any proposal to alter or modify parking lot spaces, structure or design. Failure to take appropriate precautionary measures, including but not limited to a careful review of tenant leases and consultation with a lawyer, may lead to unanticipated legal issues.

Many shopping center leases do not specifically provide for tenant parking. It is not uncommon for a lease to provide that the tenant pays monthly rent for its leased premises and “the appurtenances thereto.” An appurtenance is something that is reasonably necessary to a lessee’s business.^[1] In a shopping center, Illinois courts have recognized that the “furnishing of customer parking is absolutely essential to the tenants’ business.”^[2] Pursuant to Illinois law, those areas which are reasonably necessary to the enjoyment of the premises are deemed appurtenant to the lease premises and pass, by the lease, without any additional words.^[3] Indeed, it has been held that shopping center invitees’ use and access of the parking lot is essential to the full beneficial use and enjoyment of the leased premises and therefore, constitutes an easement appurtenant to the leased premises.^[4]

A shopping center tenant’s right in customer parking has been found even though no lease language expressly grants the tenant the right to use or access the parking lot.^[5] Such may be the case where a tenant shows evidence of historic usage of the parking lot in the course of its tenancy.^[6] A tenant’s interest in customer parking can also be shown by reference to other provisions in the shopping center lease such as riders regarding payment of common area maintenance expenses (“CAM”) through which shopping center tenants are assessed fees for maintenance and upkeep of the parking lot. Under such circumstances, a tenant right in customer parking may be found and enforced by a court.

The existence of an express provision granting a right in customer parking at a shopping center is just one of many factors courts consider in deciding whether a tenant in a shopping center has the right to the use of and access to the parking lot for their business invitees. Other factors courts consider are whether tenants contribute to the maintenance and upkeep of the parking lot, whether a plat of the shopping center was attached to the tenant’s lease depicting the parking lot as part of the common area, and whether the custom and practice between the parties established that the parking lot was an appurtenance to the tenant’s leased premises.^[7]

Modifications or alterations to existing parking configurations can give rise to suits for an injunction. Interference with a property right is sufficient irreparable harm so as to warrant injunctive relief.^[8] In this regard, it is not necessary that a party seeking an injunction show an actual loss of sales arising from a proposed change in parking arrangements. The threat of immediate and irreparable harm will suffice.^[9] Furthermore, if a tenant is able to show a loss sustained as a consequence of an interruption in parking rights, the shopping center may also be liable for damages as a consequence of the alternation or modification.

For example, in Walgreen Company v. American National Bank and Trust Company of Chicago, ^[10] a lease provided that the shopping center would provide a parking area for “at least” 400 cars. Several years thereafter, the landlord proposed erecting a photo kiosk in the parking lot. The kiosk would have the effect of eliminating a total of 3 parking spaces. Although the remaining parking would still provide for the 400 space minimum described in the lease, the Court found that “deprivation of a property right, the elimination of parking spaces and the potential disruption of travel, constitute an irreparable injury” warranting injunctive relief.^[11]

From the above, it is clear that courts have historically found that parking access is necessary for the enjoyment of a tenant’s leased space at a shopping center. Specific lease provisions may limit a tenant’s parking rights. Before taking any action to modify or alter parking spaces, the shopping center must conduct a careful review of all tenant leases and should consult an attorney.

[1] Black’s Law Dictionary (6th Ed. 1990) defines “appurtenance” as “something annexed to another thing more worthy as principal, and which passes as incident to it, as a right of way or other easement to land.”

[2] Mutual of Omaha Life Insurance Company et al. v. Executive Plaza, Inc., 99 Ill. App. 3d 190, 194, 425 N.E.2d 503, 507 (2d Dist. 1981).

[3] The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc, et al., 4 Ill. App. 2d 454, 464, 465, 124 N.E.2d 649, 654 (1st Dist. 1954).

[4] Id.

[5] Walgreen Company v. American National Bank & Trust Co. of Chicago, 4 Ill. App. 3d 549, 555, 281 N.E.2d 462, 467 (1st Dist. 1972).

[6] Id.

[7] Walgreen Company v. American National Bank & Trust Co. of Chicago, 4 Ill. App. 3d 549, 554, 281 N.E.2d 462, 466-467 (1st Dist. 1972); Great Atl. and Pac. Tea Co., Inc. v. LaSalle Nat’l Bank, 77 Ill. App. 3d 478, 395 N.E.2d 1193, 1198 (1st Dist. 1979); The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc., et al., 4 Ill. App. 2d 454, 469, 124 N.E.2d 649, 656 (1st Dist. 1954); Mutual of Omaha Life Insurance Company et al., v. Executive Plaza, Inc., 99 Ill. App. 3d 190, 192, 425 N.E.2d 503, 506 (2d Dist. 1981); Midwest Bank and Trust Company v. Scot Lad Foods Inc., 140 Ill. App. 3d 166, 169, 488 N.E.2d 676, 678 (1st Dist. 1986).

[8] Great Atl. and Pac. Tea Co., Inc. v. LaSalle Nat’l Bank, 77 Ill. App. 3d 478, 486, 395 N.E.2d 1193, 1199 (1st Dist. 1979); Walgreen Company v. American National Bank & Trust Company, 4 Ill. App. 3d 549, 555-556, 281 N.E.2d 462, 467-468 (1st Dist. 1972).

[9] U-Haul Company of Central Illinois v. Hindahl, 90 Ill. App. 3d 572, 577, 413 N.E.2d 187, 192 (3d Dist. 1980).

[10] 4 Ill. App. 3d 549, 281 N.E.2d 462 (1st Dist. 1972).

[11]Id. at 556, 281 N.E.2d at 468.