Lease of claimant’s flat granting parking rights over areas adjoining block – Limited number of lessees so entitled – Landlord having right to specify parking places – Claimant and other eligible lessees parking on forecourt – Landlord excluding all cars from forecourt while carrying out work preparatory to new lettings – Landlord claiming right to terminate parking rights on forecourt – Landlord offering four spaces to eligible lessees – Whether landlord so permitted by lease – Whether landlord’s past and intended conduct amounted to substantial interference
The claimant was one of 13 tenants holding long leases of flats (the eligible flats) in a block of 70 flats in London NW8. By a schedule, the leases gave each lessee the right, in common with others similarly entitled, to park a car “on such part of the retained property as may from time to time be specified by the lessor as reserved for car parking when space is available and subject to such regulations as the lessor may make from time to time.” At all material times before 1977 the area so reserved was a forecourt, which could, with some difficulty, take up to 13 cars.
During the first five months of 1997, the defendant landlord carried out refurbishment work on the forecourt, during which time no parking was possible. On completion of that work, which left the forecourt with 11 marked-out places with lockable posts, the defendant announced that parking on the forecourt would no longer be available to the lessees of the eligible flats. Thereafter, and for the following 14 months, the claimant was unable to use the forecourt, as it was occupied by contractors engaged by the defendant to refurbish some flats that had become vacant and construct two penthouse suites on a newly built fifth floor. In April 2000 the claimant was informed that four parking places would be set aside for lessees of the eligible flats, who would be entitled to use them on a first-come, first-served basis for an annual fee of £50.
The claimant sought a declaration that she had a right, in the nature of an easement, to park on the forecourt, and further claimed damages for interference with that right over the period from January 1997 to August 2000. The defendant contended that such rights as might have been given by the lease were determinable and had been validly terminated.
Held: Judgment was given for the claimant.
1. Although the defendant was entitled, under the schedule, to change the location of the parking places, there was nothing in the schedule, or elsewhere in the lease, that empowered the landlord to extinguish the right to park. As that right was in the nature of an easement, it would, in the absence of express words to the effect contended for by the defendant, be exceptional to find that it was determinable at the will of the lessor/grantor: Overcom Properties v Stockleigh Hall Residents Management Ltd [1989] 1 EGLR 75 distinguished.
2. The refurbishment over the first five months of 1997 was justified, but the total interference thereafter was not. Upon a true comparison with the claimant’s rights, as exercisable after the refurbishment of the forecourt, and disregarding the improper demand for payment, a reduction of the number of available spaces to four would undoubtedly amount to a substantial interference: Pettey v Parsons [1914] 2 Ch 653 considered. The annual rental value of a reserved space was agreed by the parties to be £2,000. Making a small allowance for the fact that the claimant could not always have been sure of finding a parking space, a proper award for the loss of the right to park from May 1997 to the date of trial was £6,300.
Alexander Hill-Smith (instructed by L Bingham & Co) appeared for the claimant; Norman Primost (instructed by Rochman Landau) appeared for the defendant.
Alan Cooklin, barrister
