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In the Spotlight: Tenants Should Seek Flexibility in Negotiating Parking Privileges

By By William Crowe
September 22, 2003

Lease provisions that provide for the tenant to make periodic payments to the landlord for parking privileges are often unclear as to whether the tenant is required to pay for the availability of such spaces, whether or not the tenant utilizes them. Because parking is typically dealt with either as an attachment to the lease or in a provision of the lease that is distinct from the rent provision, parking charges are typically not included within the definition of 'rent.' Because of this, a tenant may have a technical argument that it does not owe the landlord parking charges unless it actually uses the available parking. If a landlord (and/or its mortgage lender) are relying on the income stream from the parking area, this ambiguity is troublesome. From the tenant's perspective, if the tenant seeks the flexibility of utilizing the parking on a pay-as-it-goes basis, it should not settle for ambiguity, but should negotiate a provision that specifically allows the tenant to utilize parking privileges at its election and only pay for such privileges for the duration of time that it actually uses them.

William Crowe is a partner with Mayo, Gilligan & Zito in Wethersfield, CT

Lease provisions that provide for the tenant to make periodic payments to the landlord for parking privileges are often unclear as to whether the tenant is required to pay for the availability of such spaces, whether or not the tenant utilizes them. Because parking is typically dealt with either as an attachment to the lease or in a provision of the lease that is distinct from the rent provision, parking charges are typically not included within the definition of 'rent.' Because of this, a tenant may have a technical argument that it does not owe the landlord parking charges unless it actually uses the available parking. If a landlord (and/or its mortgage lender) are relying on the income stream from the parking area, this ambiguity is troublesome. From the tenant's perspective, if the tenant seeks the flexibility of utilizing the parking on a pay-as-it-goes basis, it should not settle for ambiguity, but should negotiate a provision that specifically allows the tenant to utilize parking privileges at its election and only pay for such privileges for the duration of time that it actually uses them.

William Crowe is a partner with Mayo, Gilligan & Zito in Wethersfield, CT

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