Parking Rights

Steeles Law Head of Real Estate Michael Fahy and Trainee Solicitor Laura Tanguay consider the High Court decision of Kettel v Bloomfield [2012] EWCA 1422 (Ch) on the right to use car parking spaces and the landlord’s ability to reallocate spaces.

The Claimants in this case held leasehold interests in eight flats in a development known as City Walk. Each lease granted the tenant the right to park in a designated parking space.

The freehold owner of City Walk obtained planning permission to build a new housing block; the location of which would be in the same spot as the parking spaces. The landlord therefore wrote to each tenant to explain that their parking spaces were being reallocated and promptly fenced off the area.

The tenants did not consent to their parking spaces being moved and sought an injunction to restrain the landlord.

Type of ‘right’

The first question considered by the court was the nature of the right granted. Did the parking spaces form part of the property demised by the lease, or did the tenants merely have easements to use the spaces? The distinction was important as the extent of the rights granted determined the extent of the landlord’s limitation in developing the land. If the spaces formed part of the demise, the landlord would be prevented from building on them or even in the airspace above them.

The court held that the terms of the lease did not amount to a demise of the car parking spaces.

The case law on whether or not a right to park a car can exist as an easement is far from clear. The rule established in the case of Batchelor v Marlow [2003] 4 All ER 78 stated that a right to park a car could not be an easement if it left the servient owner without any ‘reasonable use’ of his land. However, the subsequent decision of Moncrieff v Jamieson [2008] 4 All ER 752 criticised the ‘reasonable use’ test and held that the correct test should be whether the servient owner retains “possession and control” of the land subject to the reasonable exercise of the easement.

However, the court in this case confirmed that it was obliged to apply the ‘reasonable use’ test as set out in Batchelor. It was held that the rights did not deprive the landlord of all reasonable use of the land – the landlord could cross the space, enter the space to maintain or resurface it, lay conducting media under the space and install overhead projections such as wires. The rights were therefore upheld as easements.

Movement of the spaces

None of the leases expressly stated that the landlord could move the spaces and the court held that no such right could be implied. The court looked to the case of Greenwhich NHS Trust v London & Quadrant Housing Association [1998] 1 WLR 1749 in confirming that the landlord could not unilaterally extinguish an easement by providing an equivalent easement.

Remedy

The landlord argued that damages were an appropriate remedy as the loss was, in his opinion, trivial given that the tenants would be given spaces new only yards away. However, because the landlord had not made the offer of new spaces in a way that would be binding, the court held that it had sought to escape the burden of the rights granted and consequently allowed the injunction.

Practical solutions

If a tenant has a right to park in a designated parking space there is no right to reallocate the space, even if the new space is only a short distance away and equally as convenient. The safest course of action is to grant parking rights in relation to spaces ‘designated by the landlord from time to time’

If you require advice on any issues raised in this article please contact Michael Fahy on 020 7421 1720 or [email protected].