‘Limit’ Doesn't Mean Eliminate

If you agree to provide the tenant with parking spaces or other amenities, you may also want the right to eliminate those amenities. But if your lease is like some we've seen, it may say only that you can “limit” amenities. If you think that placing a limit on amenities gives you the right to eliminate them completely, think again. A limit entitles you only to restrict something, not to get rid of it, warns Ohio attorney Abraham Lieberman.

Owner Couldn't Eliminate Tenant's Parking Spaces

A Maryland owner learned this lesson when it tried to eliminate a tenant's parking spaces. The lease said that the owner “reserves the right to limit the number of employee parking spaces to be provided” to the tenant. The owner notified the tenant that it was canceling its monthly parking agreement with the tenant and that the tenant's employees would have to pay for daily parking. The tenant sued the owner for violating the lease by eliminating the employee parking spaces. The owner asked the court to dismiss the lawsuit, which it did. The tenant appealed.

A Maryland appeals court reinstated the lawsuit, ruling that the owner's right to limit the number of parking spaces didn't include the right to eliminate them entirely. The court rejected the owner's argument that because it was permitted to limit the number of parking spaces, it could limit them to zero. The court noted that the word “limit” commonly means to define the extent of something or to set bounds—not to eliminate or destroy. So the court sent the lawsuit back to the lower court to determine the minimum number of parking spaces the center must provide for the tenant's employees [Sy-Lene of Washington, Inc. v. Starwood Urban Retail II, LLC].

Practical Pointer: If you want the right to get rid of a tenant's amenities entirely, say in the lease that you can “eliminate” them, says Lieberman. For example, the Maryland owner could have better protected itself by getting “the right to eliminate and/or limit the number of the employee parking spaces to be provided” to the tenant, he says.

CLLI Source

Abraham Lieberman, Esq.: Member, Baumgartner & O'Toole, 5455 Detroit Rd., Sheffield Village, OH 44054; (440) 930-4001; alieberman@b-olaw.com.