It is unjustified to differentiate shared costs for individual tenants.
The Union of Polish Employers in Trade and Services (ZPPHiU) reports another ruling by the District Court regarding the unjustified differentiation of shared costs in a shopping center. The court confirmed that shared costs should be the same for all entities – it is not permissible for some tenants to cover the costs of others in a specific shopping center. The verdict, though not legally binding, highlights significant deficiencies in the construction of a typical lease agreement – according to the current standard, the value of service costs cannot be estimated by the tenant in advance.
The verdict was delivered in the first instance before the Poznań District Court in June 2024 and referred to the unjustified differentiation of shared cost levels among shopping center tenants. The tenant was represented by attorney Karol Szadkowski from Henclewski & Wyjatek Law Firm, who conducted a very interesting webinar for ZPPHiU and PSNPH members discussing the reasoning of the ruling.
“The District Court pointed out in the justification that the terms of contracts concluded by individual tenants of the shopping center may differ in terms of rent rates. Criteria for differentiation may include the size of the rented space, the turnover achieved by the tenant or the recognizability of its brand attracting customers to the shopping center. However, with regard to the principles of dividing the cost of functioning the center, the above criteria cannot be the basis for differentiating the situation of individual tenants. In particular, the court considered it unjustified to shape lease agreements in such a way that tenants visited by fewer customers would bear the costs of those visited by more, which is associated with the actual multiple use of infrastructure and utilities. Service charges should therefore in principle be lump-sum,” emphasized Dr. Karol Szadkowski from Henclewski & Wyjatek Law Firm.
This is another court ruling on shared costs – in 2023 a final judgment of the Appeals Court was handed down, awarding the tenant over 100 thousand zł from a shopping mall representative in connection with irregular practices during the calculation of shared costs. This was the result of a beneficial ruling for the tenant by the Supreme Court on October 28, 2022 (ref. II CSKP 456/22).
“We believe that any discounts or preferential terms that the landlord proposes to selected entities should be part of his business plan. Transferring this cost to other tenants is inconsistent with business ethics, and also violates the law, as confirmed by the court. Such practices in various areas have been used by landlords for years. We are concerned about the proper distribution of risks for each party, both in contracts and in business relationships. When preparing a lease offer, the tenant should calculate and take into account all costs that can be charged during the term of the contract and assume the business risk associated with ownership. Shared cost reductions may be proposed by the landlord – but then the landlord himself must cover the difference, not demand it from other tenants. You cannot shift the costs of some tenants onto others,” indicates Zofia Morbiato, the General Director of the Union of Polish Employers in Trade and Services (ZPPHiU).
It is worth reminding at this point that the Supreme Court issued a ruling stating that landlords cannot collect inflated operational costs from some tenants in connection with the exemption of other tenants (privileged tenants, known as anchors) based on unclear criteria. The case concerned shared costs, which in principle should be covered proportionately by all tenants.
ZPPHiU has previously pointed out that tenants in shopping centers – when negotiating contracts – are not informed about the number of privileged tenants (so-called anchors) or the duration of their agreements. Such tenants often have preferential terms of shared charges. Only the owner or management of the center knows when a privileged tenant can use the option to terminate the agreement, what conditions are expected when extending it and how this will change the character of the center. Provisions stating that any tenant, whom the landlord considers an anchor, are reasonable. The natural consequence of such a statement is the acceptance of the necessity of the shopping center owner bearing the costs of attracting and maintaining privileged tenants.
Source: https://ceo.com.pl/zpphiu-kolejny-wyrok-sadu-w-sprawie-kosztow-wspolnych-w-centrum-handlowym-45329
