Lawyers have been arguing for years over whether a right to park vehicles constitutes a valid legal easement. The issue is extremely important to developers, which tend to prefer to grant rights to park in allocated parking spaces, as opposed to including car parking spaces in areas let or sold to individual tenants. There are several reasons for this. Including car-parking spaces in the common parts facilitates the control and management of communal parking areas. Excluding car-parking spaces from the areas let or sold to individual tenants may help to reduce overage payments in some cases. The device also enables residential developers to ensure that car-parking spaces are excluded from calculations of the floor area for the purposes of rights arising under long leasehold legislation.
However, buyers have become increasingly concerned that exclusive rights to park do not constitute valid easements because they oust the owner of the car park from the land. This has important legal consequences for a buyer, so the argument goes, because the rights granted by the developer would then constitute a personal right, as opposed to a property right that can be enforced against successors in title to the parking area.
The judgement of the House of Lords in Moncrieff v Jamieson [2007] UKHL 42; [2007] PLSCS 201 is the most authoritative decision on the point to date. The case confirms that a right to park vehicles that is appurtenant to a dominant tenement constitutes a valid “servitude” in Scottish law. However, the judgment is also important for the law of
Although there were differences of emphasis in the judgments, the House of Lords agreed that the right to park vehicles is a valid servitude. It appears, therefore, that sole use for a limited purpose is not necessarily inconsistent with the nature of an easement, and developers will seize on the judgment to justify the legal status of rights to park granted in
Their lordships went on to decide that, because of the unusual circumstances in this case, the grant of a right of access to the dominant land included the right to park vehicles on the servient land. They justified their decision to imply rights to park on the servient land, in addition to the rights of access expressly granted in favour of the dominant land, on the ground that the access rights would be ineffective in the absence of ancillary rights to park on the servient land.
The decision could, in theory, be applied to any urban property with access rights but without parking. However, the House of Lords emphasised that the property was situated in an exceptional position on the foreshore at the bottom of a steep cliff on the
Allyson Colby is a property law consultant
