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Pathmark Stores, Inc. v. Bernard Oster, Inc.

BER-C-232-07 (N.J. Super. Ch. Div. 2008) (Unpublished)

LEASES; EASEMENTS — An easement holder, even a tenant under a lease holding a parking easement, is entitled to use the easement and to burden the landowner to the extent explicitly provided for in the easement agreement such that even if the number of parking spaces were to remain the same, a landlord bringing additional business into its commercial complex could violate the tenant’s easement rights just by increasing the demand for parking, thereby making less parking available to the tenant.

A supermarket tenant sought a permanent injunction of its landlord’s planned construction activities. It argued irreparable harm to the full enjoyment of its parking easement rights under the lease. The lease granted the parking easement and promised availability of parking in the property’s common areas during business hours. It also required the landlord to give notice to the supermarket of the site plan application. The Court earlier issued temporary restraints pending a possible settlement. There was none; rather, the landlord asked for its own preliminary relief to restrain the supermarket from interfering with its construction activities.

The Court first stated that to obtain permanent injunctive relief, the supermarket had to make a showing that its right to such relief had been established and that the injunction was necessary to prevent a continuing irreparable injury. It found no factual dispute concerning the landlord’s violation of the supermarket’s easement right. The Court stated that an easement holder is entitled to use the easement and to burden a landowner to the extent explicitly provided for in the easement agreement. As such, the court found that the supermarket was not limited to only some parking spaces, but was entitled to full enjoyment of parking in the entire common area under the lease. It also found no changed circumstances that would serve to redefine rights under the lease, as any changed circumstance would have to demonstrate the supermarket’s lack of need for a parking benefit, which clearly did not exist.

The Court also found that the supermarket continued to show interference with its real property rights by reason of the landlord’s construction and redevelopment, and so established a continuing irreparable injury. It noted that even if the number of parking spaces remained the same, additional business in the commercial complex as the result of landlord’s construction would increase the demand for parking, thereby making less parking available to the supermarket. As a result, the Court found that the supermarket was entitled to summary judgment permanently enjoining the landlord from conducting any construction at the property except in accordance with the lease.


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