Sharing Common Space and Facilities - a Land Grab for EV Chargers and Storage Containers

Sharing and Caring: Exploring Shared Spaces in Retail Leases

In this episode of 'That Retail Property Guy', host Gary Marshall discusses the complexities of shared spaces in retail leases, including the etiquette and fairness in sharing resources such as parking areas, delivery yards, and EV charging points. Gary highlights the challenges that arise when shared provisions are not properly managed, touching on real-world scenarios like neighborhood shopping parades and modern buildings. He also explores the role of landlords, tenants, and property managers in maintaining equitable use of shared spaces and offers insights into how disputes might be resolved. The episode emphasises the importance of clear agreements and effective enforcement to ensure that shared benefits don't become liabilities. Tune in for practical advice and thoughtful reflections on managing shared resources in retail properties.

00:00 Introduction to That Retail Property Guy

00:16 The Importance of Sharing and Caring

01:55 Challenges in Shared Spaces

02:50 Real-World Scenarios and Issues

06:50 Modern Problems in Shared Spaces

09:51 Electric Vehicle Charging Etiquette

11:46 Landlord Exploitation and Tenant Rights

15:27 Conclusion and Final Thoughts

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Transcript

0:00

Welcome to That Retail Property Guy with your host, Gary Marshall. In each podcast episode, we delve into topics from the perspective of a retailer as tenant. We hope you'll be entertained, enlightened, and maybe a little inspired. In this episode, let's talk about sharing and caring. Whether we're sharing a cake or a pizza, a train carriage, a combined cycle path and footpath, we should always share with care. Sharing demands an etiquette to avoid one party taking more than their fair share. Taking unfair advantage of a situation, perhaps unfairly profiting from the abuse of common space or assets, which are intended to be used equally for the benefit of those parties who are entitled to them. And of course, I'm saying fair and fairly, which derive from that etiquette of moral values. Some people might consider that there's no such thing as fair. in business or contracts, that the sharing provision must be written into the contract or lease if it has any intention of being applied. But even that's not entirely true. Sharing clauses can be clearly stated in leases, but actually policing them can be an entirely different kettle of fish. Who is expected to be the custodian, the mediator, the constable, the judge and the jury? Does the contract stipulate a sharing provision? But not give any teeth to anybody to actually enforce it. Is it, in essence, a weak clause, and does the benefits of the use simply fall to the bravest, the boldest, the biggest, the loudest, the cheekiest, or maybe just the least well advised, who does just what they want because they can't envisage that it isn't fair? And aggrieved party do? If they feel their rights and contractual benefits are being trampled on, what's their recourse? So let's consider some of the areas where sharing might apply to tenants of business leases. I'm not really talking about service chargeable stuff, though we'll come back to that. In general, benefits which fall under a service charge are provided and monitored by the landlord or their agent. And there'll be a structure in place to apportion the costs and delineate the rights and the areas that they apply to. Here, I'm talking about self governing shared rights. Where various contracts, whether that's a lease or a freehold or a way leave agreement, spell out what's being shared. Between whom and on what basis? After that, it's not uncommon to just assume that the recipients will muddle along together, maybe form a subcommittee, appoint a monitor, or just cooperate and collude on a flexible basis. But does that always work out okay? Consider some scenarios. Maybe a neighbourhood shopping parade. Built in the 1930's or something similar in the 1980's with a small parking area out front separating it from a busy road and a small drive around the back leading to a yard intended for deliveries and servicing. At the time the leases were granted, that forecourt, driveway and delivery yard were demised to all the occupying tenants in common, not retained by the landlord under a service chargeable obligation, but passing that burden to all the tenants to each do their bit and to share and to play nicely. Now let's consider how commercial and operational practices have changed over the years and the decades. More and more cars, meaning it's a rare chance to grab a free space out front. And then, one particular business now seems to promote longer term parking. Not just a quick ten minutes to grab a pint of milk, but maybe an hour or more in the salon. Maybe one of the businesses is a takeaway. And maybe, this isn't a general stereotype, there seems to be a lot of litter with their branding, and lots of Deliveroo drivers. Hogging all the spaces while waiting for their next ticket and maybe the punters parking there aren't even using the shops in the parade at all. They're parking up for the local station or nearby offices. They're there all day. The parade's own punters don't get a look in. And what's that? Deliveries are intended to go round the back. The articulated trucks that turn up can't negotiate the gateway. So they just pull up on the forecourt and then take half an hour to offload the pallets while blocking in the customers who just popped in to pick up the dry cleaning. So what seems, within the terms of the lease, to be a benefit sometimes offers no benefit. But it might offer a cost and a liability if the various business proprietors have to Communally clean that space and maintain it when the road surface develops pothole acne. So sharing a free car park, maybe it's more of a curse than a benefit. And then that yard at the back, it's intended for goods in and out. It starts to become a car park as the employees and branch managers of the parade's businesses park their own cars there to avoid the mayhem in the forecourt. But six out of ten cards might be associated with just one store. And while nobody has an issue, nobody complains. So this becomes a de facto right, a privilege, an entitlement, and woe betide any newcomer or estate manager who tries to change it. But sometimes it is necessary to try to challenge these established practices. They're not written into the leases. The yard is intended for goods in and out. But what if there's no longer any room for a delivery van to get in, turn around and exit safely? Of course it doesn't help that one occupier has just installed a metal shipping container in the corner of the yard. It helps with their storage and their stock availability. 20 feet long, badly parked so it occupies more space than its actual footprint. It just complicates the beneficial use of the yard for everyone else. So now, somebody has the unenviable task of approaching the other neighbours. Presenting a copy of the lease plan. Showing the yard, or the forecourt, as intended for shared use. Not for semi permanent storage solutions or staff parking. Hmm, how to start that conversation. How to deal with the fallout when one neighbour possibly feels targeted, or gets bolshie. The best answer, of course, is is to avoid this scenario arising in the first place. But once the established practices are hardened fast, making changes can be extremely troublesome. And getting shared contributions to necessary funding can be just as troublesome. If one party is looking to carry out some works that other occupiers deem unnecessary. Or of inequitable benefits. The challenges and the agro that goes with them aren't limited to neighborhood parades with delivery yards. It could be a modern building with a shared stairwell that's now used as a cycle park or a lift intended for people, but used for heavy goods. Or a shared roof that's now cluttered with one occupier's aircon units. Or a shared wall which is part of a shared structure, maybe facing the street, but now festooned with signage for one occupier, or bristling with satellite dishes and CCTV cameras. And then, an unexpected maintenance cost. Perhaps the roof springs a leak, or the lift breaks down, again. The unauthorised signage starts to impact on another occupier's brand or goodwill. Who will determine the actual responsibility, the upkeep, the fair use, the apportioned costs? Basically, this is just down to neighbourly relations. Like any shared usage of space, whether that's a street, a park, a woodland trail, the greater community expects that all users and contributors will be fair. But some don't live up to that expectation. And when a small group of tenants in common find their environment is compromised, and bear in mind they're often paying rent and therefore paying for their fair share of this benefit, there's often little choice but to band together. Where might becomes right. Though this might come at a cost, financial or otherwise. And we circle back around to the argument of who will pay. I've come across numerous situations where the role of coordinator has fallen to an estates manager from a larger business. On behalf of the smaller neighbors. And this is probably simply because the bigger retailer seems to have deeper pockets, better advice, better connections, more clout. It's not right or fair, of course, but sometimes the smaller guys do need a champion. So long as they themselves play fair and don't abuse the privilege being extended to them. But of course, these issues might also arise in a shared situation where the space is technically retained by the landlord and managed through a service charge. If the landlord doesn't have teeth, or the requisite funds to hire teeth, their management can become ineffective. Snarled up delivery yards, over exploited parking, overuse and vandalism causing excess damage. These can all be sources of great frustration to rent paying occupiers who feel ripped off, hard done by. Even in situations where each tenant's lease clearly places the management burden on the landlord, a small or medium sized business might not be aware that they have options, recourse, champions to fight their corner. Or they might know it's possible, but not feel that they have the funds to start a long and potentially litigious battle. Recently there's been a spate of activity where the culprit, the party seeking to exploit the situation, It's the landlord themselves. One aspect of this relates to EV electric vehicles or to be precise to the charging points for electric vehicles. There are loads of EVs on the road and many drivers suffer from range anxiety. Is there enough juice left in the battery to get home? Or when I get home to my busy residential street, will I find a public charging space? So public access charging points can be a godsend. Charge it while you do the shopping or go about your business, come back to a full battery, good to go. And I mentioned etiquette of sharing. It's funny how EV charging is developing an etiquette of its own. I was parked in a supermarket car park recently and was actually inspired to hang on 10 minutes to see how something played out. And from the back of that, I was inspired to create this episode. I witnessed a full on spat between two EV drivers over the etiquette of parking and charging. It seemed that driver number two had arrived, had aimed directly for the clearly marked EV charging spaces, and had found another EV already in a space. Well, what's wrong with that, I hear you cry? Take your turn, mate! Except EV one wasn't charging. The driver had simply parked up, whether by habit or sense of EV privilege. and had gone shopping, blocking the space for the second driver. So in terms of EV etiquette, should driver one have parked somewhere else, in a regular space, to better facilitate the fair share and care attributes that EV drivers should afford each other? Certainly EV driver number two thought so. They waited till driver number one appeared, with a full trolley, and gave them a piece of their mind. They were quite clear in their condemnation of driver number one for being thoughtless and inconsiderate, not knowing the rules, not playing cricket and all that. But I've digressed. My point isn't about uncouth or overprivileged drivers not playing nicely. It's about EV charging points. It's quite common for landlords to sign up a deal with an EV charge provider. to install some fast charge points in their car park, ostensibly for the benefit of EV drivers visiting the retail location. But there might also be an upside for the provider and the landlord. Some pay as you go EV tariffs can be up to 500 percent more expensive than charge at home tariffs. This could be a considerable money making arrangement, and the costs go back to the EV driver. Or do they? Consider for a moment Where has the landlord installed this new kit? Which space or spaces does the EV charger occupy? Does the landlord have free and unfettered benefit of those spaces to do with as they like? Some landlords might take the view that the individual parking spaces in a car park are not physically demised to any specific tenant. So, not demised equals the landlord can use them as they wish. But in many cases of shopping centres, retail parks, neighbourhood schemes, etc, the leases might say otherwise. The individual shop units, each demised exclusively to a specific retailer, will often be shown on the lease plan as edged red. That's a well established conveyancing convention. The parcel of land being sold or leased is shown red. Anything that's being retained for shared use could be indicated in another colour. So maybe the car park could be coloured brown. The wording in the lease might then describe that the car park coloured brown is intended for use by all the tenants, their customers, etc. It probably doesn't say, is retained by the landlord to do with as they wish. One intention of this car park management is that the costs of maintenance and upkeep will be included in the service charge that the tenant occupiers share between them. The landlord retains day to day control to avoid issues with misuse like that parade forecourt, but wholly for the benefit of the retailers who take the leases. So if a landlord grabs half a dozen spaces to convert into EV charge points, Who pays and who gets the benefit? In theory, everything related to that car park coloured brown should be for the benefit of the retailers. They pay the maintenance costs, they should get to deciding the alternative uses, and they should derive the benefit of any income from the EV charges. Of course, this income would be fed back into the service charge, not offered as a bonus or a dividend, and of course, the installation costs and the considerable power consumption would also be included in the service charge. So the whole deal, do it, don't do it, should only happen if the landlord can agree with the tenants who can consider the impact on their service charge contributions. Look at it in a much simpler way. If the retail park is next to a football stadium and the landlord decides to offer match day parking, Who should benefit? Obviously the first impact would be a loss of parking for all the retailer's customers, and just as obviously somebody's gonna take a ton of money if the lease is structured, so the car park isn't the landlord's personal fiefdom, but is a shared area intended only for the benefit of the lease holding retailers. Then those retailers should get to decide if Matchday parking is a good thing. And if so, they should then take the net benefit of the ticket turnover as a credit paid into the service charge. to reduce other costs like security, lighting, landscaping, refuse collection, whatever. The landlord themselves shouldn't profit from it. It's not their exclusive asset. So sharing and caring, not being exploited, standing up to wrongdoings. All admirable qualities, but not always observed and not always fought for. But if any of these arguments seem familiar, then please seek advice from a property professional with the relevant experience and expertise. Thank you for listening to That Retail Property Guy. Don't forget to explore more episodes, and if you have ideas for future topics, feel free to share them below. Be sure to like, share, and subscribe so you can never miss an episode. For more information, visit thatretailpropertyguy. com. Thanks again for tuning in.