The Law

No Past Parking Fees by Ron Davis Efforts to force the neighbor of a Kentucky shopping center to pay for past parking privileges haven’t gone well. The shopping center is Shively Center in Louisville. And its current owners purchased the property in 2006. That’s when those owners learned that the neighbor, which operates a Texas Roadhouse restaurant, had been encouraging its customers to park free on center property. The new owners wasted no time in demanding payment for that privilege. Moreover, the new owners wanted $40,581.33 for past parking usage of center property. Texas Roadhouse’s owners refused to pay any past parking fees. But they did start paying for the privilege of using center property for the parking of their customers. In fact, since then, Texas Roadhouse has made prompt and full payment for that privilege. Two years passed, but the center’s owners had not forgotten the matter. They again pressured Texas Roadhouse to pay for previous use of shopping center property, and they wanted payment but also interest on that payment of eight percent. The dispute eventually resulted in a lawsuit, with the center’s owners arguing their right to payment. In response, Texas Roadhouse’s owners explained that past parking privileges predated legal possession by the current center owners. But documents exist showing transfer of ownership in the shopping center from the previous owners to the current owners. Do those documents indicate a right to collect for past parking privileges? A Kentucky court wanted to see such documents. The center’s owners responded by providing the purchase agreement. It states that the seller was transferring all personal shopping center property to the current owners. That includes, the owners argued, “every species and character of property, both tangible and intangible, as well as real estate.” A Kentucky court agreed that the purchase agreement, warranty deed and easement sufficiently identify the shopping center property. But the court was not persuaded that the terms of the agreement also show intent to transfer the right to collect parking fees accruing prior to the sale of the center. The center’s owners appealed, contending that the parking easement “runs with the land.” Therefore, they added, any successors to the sales transaction enjoy all the rights of the original parties. A Kentucky appellate court disagreed with the center’s owners, ruling, “It is not enough to merely demonstrate that Texas Roadhouse entered into an easement with the center’s previous owners and that easements runs with the land. This is not at issue. Rather, the question for the circuit court was whether the right to enforce the terms of the easement as they existed prior to purchase of the parcel, which…do not run with the land, was assigned to [the center’s owners]. “Texas Roadhouse could not have been reasonably notified that any new center’s owners expected to be paid for parking lot arrearages incurred under an entirely different owner which never assigned [those rights] to the shopping center’s new owners.” . (Shively Center, LLC v. Texas Roadhouse of Dixie Highway, LLC, 2012 WL 752037 [Ky.App.]) Decision: March 2012 Published: April 2012