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Landlord Introduced Pay To Park

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steveblack

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Nov 4, 2009
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Hi All,

I wonder if anyone can offer any guidance on the following:

I'm 2 years into a 15 year lease that has 5 yearly cancellation options. My landlord initially promoted my retail unit as having 'free parking at the rear'. This parking is owned by the landlord. Whilst their is no inclusion of the parking facilities in the terms of the lease, it was made very clear in their advert that there was free parking.

My landlord has, without any consultation, introduced a pay to park scheme. This was explained in a letter from their factors in the last few weeks. As a consequence, all of my staff and I are now required to pay to park at the rear of my shop but more importantly my customers are now being charged to park and come to my shop. Since the meters were built I have had a 10% drop in custom. This is unsustainable and enough to put me out of business. Considering the average sales at my shop is £3.50 and the price to park is 80p, my customers are now witnessing an average of 23% hike in the cost to shop with me.

Please note that I have raised these concerns with my factors and the car parking company but have yet to receive a solution.

Is this legal? Can I challenge them in a court of law? Am I able to claim for loss of earnings as a consequence of false advertising of the intial lease?

Any advice is appreciated.

Thanks
 
steveblack said:
Is this legal? Can I challenge them in a court of law? Am I able to claim for loss of earnings as a consequence of false advertising of the intial lease?
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No it isn't, and yes you can.

Parking on private land is a minefield. Look at all the messages on forums about the "parking tickets" that Tesco etc issue. First point is that I hope your landlord has declared to the business rates people that he is operating a car park on this land.

Does your lease give you an area of outdoor land to use? Did the advert say "you can use all the spaces at the back for you/your customers)" or did it say "you can use whatever spaces are available in the communal car park"?

My advice is not to make any further payments to the landlord - be aware though that fighting them may not be cheap.
 
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Thanks for your reply James.

Since my last post, the factors have agreed to give me free parking for my cars only. Everyone else must pay. As a consequence, the car park has shifted from being 95% full down to about 10-20% during business hours. The factors state that they are freeing up spaces for shoppers who can’t park because of local workers using the spaces. As the car park was rarely 100% full, I can’t see how this makes sense.

I have spoken with all the local shops. They have all noticed a reduction in customer count since the introduction of the pay to park facility.

The factors asked me to give the new scheme a bedding in period. It’s now been 5 months and I am finding it hard to tie the director down on the phone. They are based 100’s of miles away so I can’t just knock on their door. Phone calls and emails don’t seem to be working.

In response to your comments James :

I don’t know if they have declared the car park as a revenue generating business to the rates people. Do car parks attract business rates in the same manner as shops?

The lease does not mention parking facilities at the rear. The initial advert that I responded to by the property company advertised the unit as having free parking to the rear. I quote ‘Free car parking is also available to the rear of the Centre.’ I guess my argument here is that it was falsely advertised.

I’m now in a position where I have to make a decision and that my options are as follows:

1 accept the parking as it is and move on with my business
2 challenge the landlord as a sole tenant
3 try and get all the local business to donate to a legal fund and challenge the landlord as a group.

My only concern is that I don’t want to damage relations with my landlord and would like to seek a resolution.

Any advice or pointers would be appreciated.
 
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steveblack said:
The lease does not mention parking facilities at the rear. The initial advert that I responded to by the property company advertised the unit as having free parking to the rear. I quote ‘Free car parking is also available to the rear of the Centre.’ I guess my argument here is that it was falsely advertised.
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I trust you still have a copy of this?

Can you describe where you are in a bit more detail. i.e. is this a unit in a large shopping mall, or is it simply three or four shops together with a parking yard at the back?

To be honest, I can imagine that this will fundamentally affect your business model.... I think you ought to fight somehow.
 
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I'm agree you should seek your rights in court of law. It is obviously that this is fraud and with a good solicitor with experience in property cases you might win :)
 
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Thanks again for the advice.

The shop is part of a shopping centre on a main street with 16 shops. The rear car park and shopping centre are both owned by the same company. The car park has marked car parking slots and is also used for shop deliveries.

I still have a copy of this advert which includes a location map displaying the premises and the car park.
 
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Okay - one option would be to send a letter asking to terminate the contract and refund monies you have paid (and you then go look for another shop).

Is this something that would be attractive to you (note - you would obviously have to pay for a solicitor to send this letter, and they are unlikely to give in without a fight).

Could you look at refunding customers who pay for parking?
 
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steveblack said:
This parking is owned by the landlord. Whilst their is no inclusion of the parking facilities in the terms of the lease,
Thanks
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My apologies for playing devil's advocate but isnt this the salient part?

Did you employ a solicitor to agree the lease or did you do it with no legal advice?

If you employed a solicitor to do this then the blame lies there, not with your landlords.

It took me weeks to tie up every single loophole (taking into account the to-ing and fro-ing of correspondence) on my latest lease. I tried not to leave anything to chance and if it wasn;t in the lease agreement, I made sure it was!

Regards

Jon
 
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Hope I can help here. I am a property management surveyor acting for landlords, so can maybe see the other side of the coin.

The statement that there was free parking behind the shop when you signed your lease was a statement of fact, but would not oblige the landlord to keep it free for the duration of your lease. If that was a funadamental issue for you, you ought to have had a clause obliging the landlord to keep it free but few tenants have that much clout when entering a lease.

I think the posts above are suggesting a potential claim under the Property Misdescriptions Act, but personally I don't think you have a valid claim on that front.

Flushing out staff and long term parkers is an admirable aim - we do that too as car park turnover is vital to a healthy retail environment. However, that can be achieved without charging for parking, ie often it will be first hour free or first couple free or whatever. The fact that there is an immediate charge suggests that the landlord sees this as a revenue generator and if that is the case, it will be very difficult to persuade them to reverse it. Every £1000 of car park income probably adds £10-15k to the value of their investment, so your best chance to reverse this is to demonstrate that in the long term it will cost them more to continue with the arrangement. So if you and a few of your neighbours were seriously considering leaving at the next oopportunity, be it lease expiry of break option, you could ask the landlord to attend a meeting and lay out that probability in a cool and logical way and perhaps suggest an alternative involving an hours free parking but with a rapidly escalating charge thereafter. It means business owners and staff need to park further away and walk to work, but that should be acceptable to ensure plenty of available parking for customers.

Hope this is helpful,

John
 
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Thanks everyone for all your replies. It has been very helpful.

Yorkshirejames - your query regarding business rates has been very helpful. It turns out that the landlord has not registered the pay to park facility, with the non domestic rates valuation board, nor have they requested planning permission from the council. The car park is practically dead. I'm assuming that the volume of business that the car park attracts is not relevant - in the same way the reduction in footfall has not reduced my rates. As they have over 100 marked parking bays, I'm guessing that they will receive an invoice for 2010/11 rates.

Jon - this is my first business venture so probably a bit of naivety in my part for not getting something in the lease regarding the parking facilities. Lease only mentions that there is access at the rear for deliveries etc.

John Mac - the landlord is definitely using the car park as a revenue generating tool. I have now spoken with all the tenants. Most of them have been communicating with the Factors independently. The reasons and explanations they have been getting are not all consistent. I can understand the landlord wants to maximise profit and the value of the property but if shops start closing (some have hinted they will not renew lease) I could only imagine this would cost the landlord more money and deter future tenants. I have already chased the landlord/factors for meeting via the phone and in writing but can't help but get the feeling I'm being ignored.

We, the tenants, are currently working towards communicating as a united party. Hopefully in numbers, we can apply pressure for some common sense. I for one would welcome a 30 minute or 1 hour free parking period for all vehicles. This would deter the workers and create accessible parking for true shoppers.

Thanks again. I'll post how I get on.
 
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Hi Steve

Thanks for the reply and good luck. It's definately one of those "I won't let that one get through again" mistakes isn't it?

Hope you get yourself sorted mate.

Jon
 
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John Mac said:
Hope I can help here. I am a property management surveyor acting for landlords, so can maybe see the other side of the coin.

The statement that there was free parking behind the shop when you signed your lease was a statement of fact, but would not oblige the landlord to keep it free for the duration of your lease. If that was a funadamental issue for you, you ought to have had a clause obliging the landlord to keep it free but few tenants have that much clout when entering a lease.

I think the posts above are suggesting a potential claim under the Property Misdescriptions Act, but personally I don't think you have a valid claim on that front.
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John, I defer to your specialist knowledge, but if something is advertised as "with free car park" then surely that is an implied part of the offer? Its like saying "buy this car for £10k" and then two months later going back and removing the gearbox, on the basis that our man bought a car and it didn't specifically state that a gearbox was included!

John Mac said:
Flushing out staff and long term parkers is an admirable aim - we do that too as car park turnover is vital to a healthy retail environment.
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John - unless you are in an area of good public transport (which is really London, maybe Manchester and Birmingham, and little else) where do you suggest the staff park?
 
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yorkshirejames said:
John, I defer to your specialist knowledge, but if something is advertised as "with free car park" then surely that is an implied part of the offer? Its like saying "buy this car for £10k" and then two months later going back and removing the gearbox, on the basis that our man bought a car and it didn't specifically state that a gearbox was included!



John - unless you are in an area of good public transport (which is really London, maybe Manchester and Birmingham, and little else) where do you suggest the staff park?
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James

Regardless of what's advertised, it still needs to be tied up in the lease agreement to make it real.

The purpose of the lease is to ensure there are no grey areas.

Regards

Jon
 
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Consider buying a mobile phone/laptop computer/netbook etc that are all designed to work off a battery, but that battery is always excluded from any warranty.

It all depends whats in the contract.
 
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Agree with Boxby here.

No matter what we think is right or appropriate, it all comes down to the written word.

The phone/laptop providers hardly bend over backwards to point out that as a consumable, the battery isn't part of the warranty.

Jon
 
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internetspaceships said:
Agree with Boxby here.

No matter what we think is right or appropriate, it all comes down to the written word.

The phone/laptop providers hardly bend over backwards to point out that as a consumable, the battery isn't part of the warranty.

Jon
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It is though. The blackberry on my 5 month old replacement blackberry was barely lasting a day - I called up T-mobile, who told me that the battery had a 6 month warranty and promptly sent a new one out (and said I could either keep or recycle the old one).

But turning to our man's parking issue - does anyone have anything to offer him?
 
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yorkshirejames said:
But turning to our man's parking issue - does anyone have anything to offer him?
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I think you know my stance on this.

Just carry on parking, oh, and get a box to collect the litter if anyone happens to stick some on the car.

The parking company are very unlikely to go anywhere near a Court anytime soon.
Their first warning letter is virtually guaranteed to break the law.
 
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steveblack said:
The factors state that they are freeing up spaces for shoppers who can't park because of local workers using the spaces.
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So here, it seems, is the reason for the new policy: People who work in nearby stores and offices are using the car park, tying up spaces meant for shoppers. If this is the real reason, can the owner not implement a scheme whereby the first 30 minutes of parking are free? In addition, you and your staff should be issued with parking permits. Together, these two policies would solve the problem, right?

If this is not the reason, and the owner is using this as a revenue generator, the business case falls apart if you and other tenants move out.
 
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Atilla said:
I think you know my stance on this.

Just carry on parking, oh, and get a box to collect the litter if anyone happens to stick some on the car.

The parking company are very unlikely to go anywhere near a Court anytime soon.
Their first warning letter is virtually guaranteed to break the law.
Click to expand...

You're correct there - but it is his customers' cars he is more concerned about. They may not want the hassle.
 
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Might be a bit of hassle but around here we have a scheme where the person pays for parking upfront, and then if they present their ticket within 2 hours, they get a refund from the retailer. Many shops are in the scheme and it seems to work well.

It does stop people just browsing, I suppose, but it makes people buy something if they want their money back.

Just an idea.
 
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Thanks everyone for your feedback and advice. The landlord has now removed the pay to park scheme. Looks as though the non domestic rates bit did the trick.
 
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