Facts: The owners of a shopping center sued the anchor tenant, a grocery store, after a dispute arose over the tenant's use of common areas behind the store. The trial court found that the tenant violated its lease by placing large, seasonal storage containers in the center's parking spaces, but also concluded that the tenant's practice of keeping bread racks and similar items in parking spaces was permissible under lease provisions allowing the use of common areas for the “loading and unloading of merchandise.” The owners appealed.

Decision: The appeals court reversed part of the trial court's decision.

Reasoning: The appeals court agreed with the trial court that keeping seasonal storage containers in the parking spaces was a violation of the lease. But it disagreed with the trial court's finding that the tenant's use of parking spaces for bread racks and other food storage containers was permissible under lease provisions allowing the use of common areas for the loading and unloading of merchandise.

There was no question that racks and food storage containers were used for loading and unloading merchandise at some point during the process of delivering items to the store, the appeals court stated. That usage was proper under the lease provisions and also essential to the operation of the supermarket. However, these items were left in the parking spaces far beyond any time associated with the actual loading and unloading of merchandise, the appeals court noted.

By keeping items in the parking spaces, the tenant appropriated the spaces to the exclusion of anyone else. Although under the lease the tenant had the right to nonexclusive use of the parking areas, it had no authority to commandeer the spaces for its own storage purposes, including the storage of seasonal containers and the long-term storage of items that were to be used temporarily.

• Muzzi, et al. v. Bel Air Mart, January 2009

Expert Commentary: Be Specific When Granting Common Area Rights

Despite the favorable outcome for the owners in this case, savvy owners will want to make sure their lease forms expressly prohibit storage of any kind within the common areas—including, but not limited to, temporary storage of merchandise or equipment or the overnight parking of vehicles or trailers, advises Justin W. Leach, an attorney in Nashville, Tenn.

When attempting to accommodate the operational needs of particular tenants, owners will want to be as specific and restrictive as possible about the nature of any rights they grant, Leach advises. He says that, with regard to common area use, owners might have the best luck allowing tenants to reserve the right to use designated portions of the common areas for specific purposes for a limited amount of time—for example, by delineating a “temporary storage area” on the site plan, “which may be used for storage of [insert items] no more than [insert #, e.g., six] times per year and for no more than [insert #, e.g., three] weeks in duration.”

Expert Commentator

Justin W. Leach: Attorney-at-Law, Waller Lansden Dortch & Davis, LLP; 511 Union St., Ste. 2700, Nashville, TN 37219; (615) 850-8522; Justin.Leach@wallerlaw.com.