Daily Development for Monday, October 29, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

LANDLORD/TENANT; TENANT LIABILITY FOR INJURY TO NEIGHBORING PARTIES: Tenant not liable for trespass where mall landlord fulfills its obligation to provide parking for tenant by trespassing on adjacent property in construction of parking lot, since parking lot was open to all mall tenants and tenant made no effort to direct tenant's customers to that location.

Golonka v. Plaza at Latham LLC., 704 NYS 2d 703 (A.D. 2000)

Landlord claimed that its attorney (since deceased) had advised him that he had acquired by adverse possession certain property adjacent to its mall. Nevertheless, landlord continued to negotiate with the owner of the property to acquire the property for parking lot expansion. The negotiations were unsuccessful, but in the meantime the landlord concluded negotiations with J.C. Penny to occupy the mall, and committed in the lease to provide more parking than it then had built.

Landlord simply paved over the adjacent property. The owner of that property, an octogenarian living in Arizona, didn't discover this for a while, and the property was used for a parking area by various customers of the Penny store and others. Ultimately, the owner did discover that the mall had paved her land and a legal dispute ensued.

The owner alleged trespass both by the mall owner and by J.C. Penny.

The court found that the mall owner had indeed trespassed on her land and authorized consideration by the trial court of treble damages. As to J.C. Penny, however, the court acknowledged that one can trespass through one's overt actions even when one is unaware of the fact that one has crossed over to the property of another. But the court held that nonetheless there was no trespass by Penny here.

The landlord had not designated the expanded parking area exclusively for Penny customers. Any mall customers could park there. Further, Penny did not direct its customers to park specifically in that area, although, of course, it implicitly invited them to park anywhere that parking was marked in the lot. In the final analysis, it was the mall owner, and not Penny, that determined whether mall customers would park in the overlapping area. Consequently, Penny had not trespassed.

Also see: Shapera v. Hasselback, 630 N.Y.S.2d 162 (App. Div. 1995).

(Truck stop is not liable to neighbor for truck stop customers who trespass on plaintiff's property or park on the right of way easement granted by plaintiff to defendant, absent special obligations in the deed or easement documents. The court indicates that liability could have arisen if the deed or easement had contained affirmative obligations by the truck stop to prevent its customers from trespassing or parking on the right of way.)

Compare: Housing Authority of City and County of San Francisco v. Aguila, 18 Cal. Rptr. 2d 218 (Cal. App. 1993) (Housing Authority may be liable for noise and other adverse impacts on neighbors of housing project caused by project tenants, their Guests, and others attracted to site if Authority does not take reasonable steps to prevent such impacts.)

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