Make Sure Existing Restrictions Are Still Necessary Post-Disaster

August 31, 2006

Make sure restrictions you've imposed at your center are still necessary after a disaster strikes, says New Orleans attorney Marie A. Moore. If you continue to enforce restrictions after a disaster removes the circumstances that prompted them, a tenant might claim that you're being unreasonable or trying to constructively evict it from its space, she says.

Make sure restrictions you've imposed at your center are still necessary after a disaster strikes, says New Orleans attorney Marie A. Moore. If you continue to enforce restrictions after a disaster removes the circumstances that prompted them, a tenant might claim that you're being unreasonable or trying to constructively evict it from its space, she says.

A Louisiana owner might be rethinking its parking restrictions after being dragged through this case: Before Hurricane Katrina, center tenants complained that a pharmacy tenant's customers were taking up too many spaces in the center's premium parking area. So the owner issued parking restrictions that allocated a set number of parking spaces to each tenant, based on the size of its store. The pharmacy was allotted six parking spaces. Hurricane Katrina later caused some tenants to leave, relieving the parking pressure on the remaining tenants. The pharmacy asked a court to block the owner from enforcing the parking restrictions, claiming that the restrictions violated the lease and hurt its business.

A federal court in Louisiana refused to block the owner from enforcing the restrictions. The court said that the owner had “good cause” to issue the restrictions before Katrina and that they were based on objective criteria. Thus, they were reasonable regulations that the lease authorized the owner to impose on the use of the common areas, reasoned the court. But the court wasn't sure that the restrictions were still necessary. It questioned whether it was reasonable for the owner to enforce the restrictions if the parking crunch dissipated after Hurricane Katrina. Allowing the owner “to constructively evict [the tenant] by limiting its customers to six premium parking spaces,” while the remaining parking spaces sat unused, ran counter to the parties' lease, warned the court. Hurricane Katrina's “effect on the parking situation might very well have mooted the owner's need to enforce those restrictions at this time,” the court added.

  • Pharmacy 101 Ltd. v. AMB Property, LP: No. 05-1386 Section: “A”(3), 2006 U.S. Dist. LEXIS 39337 (U.S. Dist. Ct. E.D. La. 6/14/06).

CLLI Source

Marie A. Moore, Esq.: Member, Sher Garner Cahill Richter Klein & Hilbert, LLC, 909 Poydras St., Ste. 2800, New Orleans, LA 70112-1033; (504) 299-2100; MMoore@SHERGARNER.com.

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