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REAL ESTATE 47: Plaintiff claims a prescriptive easement over commercial parking lot.

This case arises out of a parking dispute.  Defendant owns the bowling alley next to a commercial property owned by plaintiff and leased to a restaurant.

Shortly after defendant purchased the bowling alley in 2010, he erected no parking signs in the parking lot and hired tow trucks to remove the vehicles of restaurant patrons. Plaintiff initiated the instant lawsuit seeking declaratory and injunctive relief, claiming it had a prescriptive easement over the parking lot.

Plaintiff affirmed that he had informed all his tenants over the past 25 years that they, and their patrons and employees, had the right to park in the parking lot without any restrictions.

The restaurant owner stated that her lease included an attachment referencing her right to utilize the parking lot for herself, her customers, and her staff. Furthermore, she instructed her staff and customers to park in the parking lot, as she had done while she was an employee of the former tenant since 1997. Her patrons used the lot for dining-in and carry-out services.

Although defendant disputed the veracity of the plaintiff’s affidavits, it did not submit any factual evidence to refute or rebut the information contained therein.

Because defendant did not provide authority supporting the proposition that a prescriptive easement is limited to the extent that the asserting party first exhaust the use of his own property, and because there was no evidence that the adverse use of the parking lot was limited to a defined area, the trial court ruled that the prescriptive easement encompasses the entirety of the parking lot. Thus, plaintiff’s motion was granted.

The trial court granted in part plaintiff’s motion for summary disposition, recognizing a prescriptive easement over a portion of the parking lot, but denied plaintiff’s motion for sanctions.

The party claiming a prescriptive easement has the burden of establishing entitlement to the prescriptive easement by clear and cogent evidence. An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years.

Plaintiff claimed, its tenants, and restaurant customers used the parking lot without permission for over 25 years prior to the initiation this lawsuit, and plaintiff performed maintenance on the lot including painting and striping. Additionally, the leases between plaintiff and its tenants included attachments that mentioned the parking lot.

When plaintiff told defendant that he no longer wanted plaintiff to use the parking lot, he made it clear that he could easily distinguish and identify restaurant-related parking. Defendant also requested money for parking lot repairs because of plaintiff’s historic use of the parking lot damaged the asphalt. Defendant made it clear that he had knowledge of the historic restaurant-related use of the bowling center’s parking lot.  No one else contributed to the payment for the repairs, painting, or striping the parking lot.

If you are facing a commercial real estate dispute, seek the advice of an experienced and skilled real estate litigation attorney at Aldrich Legal Services. Our attorneys have litigated literally thousands of cases.

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