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29 October 2019 / article

Should parking contracts be qualified as a lease?

When you drive into a multi-storey or underground car park, you are likely to park in the first convenient space you find. If you have a parking contract with the car park operator, that space is known as an 'undesignated parking space'. The question is how to qualify such a parking contract.

It is generally assumed that it is not a lease agreement, as that requires that the right of use pertains to a clearly demarcated property. A recent decision by the Dordrecht subdistrict court breaks with this approach, however.

The case concerned a car park in which the Municipality of Dordrecht granted the defendant a right to use 100 parking spaces for a reasonable fee. No specific parking spaces were designated, just a right to use 100 random spaces in the car park. The court ruled that a specific (immovable) item or object as a property is not a requirement for the existence of a lease. The subdistrict court noted that the legislative history of tenancy law also does not support the position that the right to use a non-specific part of an (immovable) item or object results in there being no lease.

If the subdistrict court's judgment is upheld and granting the use of undesignated parking spaces against payment must now be qualified as a lease, this may have implications for wider practice. In the context of real estate transactions, parking contracts will in that case, in the light of the principle that 'lease agreements are not terminated by sale', pass by operation of law to the new owner without the lessee's consent being required. It is generally assumed at present that parking contracts do not pass until after contract takeover, and subject to the lessee's consent.

Contact

If you have any questions regarding this item, please contact Mathijs Jansen or your regular Real Estate team adviser at Loyens & Loeff.



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