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Kambos, Inc. v. Electronics Expo, LLC

BER-C-45-07 (N.J. Super. Ch. Div. 2007) (Unpublished)

EASEMENTS; TRESPASS; NUISANCE —A trespass is distinguishable from a nuisance in that a trespass requires an invasion of one’s property, whereas nuisance is the continuation of such a trespass and the standard for a nuisance requires a showing of an unreasonable interference with the use and enjoyment of land, using notions common among ordinary people.

A diner’s business owners brought suit against an electronics retail store over whether the diner could enjoin the retail store’s patrons and employees from parking on shared spaces on the retailer’s property. It also asked the court to enjoin the retailer from advertising its sales events. The retailer held approximately eight to nine major holiday sales each year. These sales were advertised in various media to bring in potential customers to shop at the electronics store. The diner’s business owners alleged that, on these sale days, its customers and employee were unable to use the diner’s allotted parking spaces because the retailer’s patrons parked in these spaces.

The present owners of the diner bought their business from the property owners. The property owner had operated the diner as well. They leased the property to the current diner owners. An adjacent lot on the northern border of the diner was also included within this lease. The retailer leased its property, which was adjacent to the diner property, from another landowner, who originally owned all of the lots in dispute, but had sold the diner and the lot where the diner was located several years prior to the action. That sale created a shared parking arrangement.

The diner claimed exclusive parking rights on the land it leased. It claimed that all “in-common” parking rights were included in its purchase of the diner business from the owners of the diner property. Included in the sale was a document entitled “Agreement/warranty to continue parking/ingress/egress rights and privileges,” upon which the diner’s owner claimed it relied when it bought the diner, and that it paid over a million dollars in consideration for these rights.

One issue in this matter was the validity of these “in-common” parking rights. The retailer asserted that these parking rights ended before the diner was last sold and therefore the parking rights could not have been transmitted to the diner business owners. The diner’s business owners asserted the reversion never took place, because any reversion hinged on the sale of the diner’s property and not on sale of the diner business. The diner’s business owners also asserted that the “in-common” parking rights and reversion issues did not affect the relief sought.

The retailer also asserted that the diner’s business owner exacerbated the parking problem by expanding the size of its own business and by failing to engage in self-help for the parking problem issues. In addition, it claimed that an examination of the diner’s revenues would demonstrate that the diner benefited.

An order to show cause was issued and the Court gave the diner’s business owners temporary relief by requiring the retailer to staff security personnel to monitor the parking lot, by requiring the retailer to clean debris in the parking lot to create more parking spaces, and requiring the retailer to delineate its parking spaces.

The Court reviewed the requirements for injunctive relief. In this case, the diner’s business owners were required to demonstrate that irreparable harm was likely if the relief was denied, the applicable underlying law was well settled, that there were no substantially disputed material facts, that there was a reasonable probability of ultimate success on the merits, and that balancing the hardships to both parties favored the issuance of the requested relief.

With regard to the likelihood of irreparable injury, the diner’s business owners claimed that their business was irreparably harmed by reason of insufficient parking for its customers caused by the retailer’s customers taking those parking spaces. The Court found that the retailer did trespass and that such a trespass constituted irreparable injury. It further found that the laws of continuous trespass and nuisance applied.

In addressing the probability of ultimate success on the merits, the Court looked separately at the validity of the parking rights and at the trespass and nuisance claims. It believed that the parking rights had yet reverted to the retailer, because sale of the diner without the land was not a trigger for the reversion. However, ultimately, the Court agreed with the diner’s business owners that this matter of “in-common” parking was not the subject of the relief sought.

As for the trespass and nuisance claims, the Court stated that a trespass is distinguishable from a nuisance in that a trespass requires an invasion of one’s property, whereas nuisance is the continuation of this trespass. Case law establishes that the standard for nuisance requires a showing of an unreasonable interference with the use and enjoyment of land, using notions common among ordinary people. Once this is established, there are several relevant factors to be considered for the issuance of an injunction. The Court ruled that the retailer’s use of the diner’s parking appeared to constitute an unreasonable continuous nuisance that adversely affected the diner’s use and enjoyment of the property. It then noted that the retailer’s refusal to abate its trespass and nuisance, despite having actual knowledge of them, constituted enough grounds for the Court to grant injunctive relief to the diner’s business owners against the continuing nuisance.

The Court also held that enjoining the retailer from advertising its sales would not violate the retailer’s First Amendment rights. With that issue out of the way, the Court addressed the relative hardships that granting this kind of relief would cause both parties. The Court noted the retailer’s assertion that the holiday sales contributed 8.5% of the store’s gross annual revenue. Given this contention, the Court felt that barring these sales or banning advertising related to these sales to cease would be too drastic. It encouraged the retailer and its employees to make reasonable efforts to prevent trespass on the diner property.


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