A parking space can be transferred as part of a freehold, or demised in a lease, but some landowners prefer to grant rights to park instead. It might therefore seem reasonable to expect the legal status of such rights to be clear.
However, a line of authority, culminating in the Court of Appeal’s decision in Batchelor v Marlow [2003] 1 WLR 764, raised doubts about their validity. The court held that a right cannot be an easement if it ousts a landowner from its land, because this would be inconsistent with ownership of the land. This led the court to conclude that a right to park vehicles on land for 9.5 hours on working days was not an easement, because the intensity of that use would have deprived the servient owner of any reasonable use of its land.
This caused difficulties for conveyancers and the Land Registry; it forced them to consider whether parking rights were valid. Absent a freehold or leasehold interest, had the user obtained a legal easement or a contractual licence? The distinction is important. An easement can be enforced against successors in title, but a contractual licence will be lost when land changes hands.
A signal change
The lack of clarity put valuable parking rights at risk. However, the law is finally beginning to catch up with the motor car. In Moncrieff v Jamieson [2007] UKHL 42, the House of Lords decided that a right to park vehicles is capable of existing as a valid legal easement in Scotland.
Nonetheless, doubts remained about the parameters within which parking rights could exist in England and Wales, especially as the decision related to rights to park anywhere within a defined area. The House of Lords did not have to consider use of a dedicated parking space and did not overrule Batchelor.
Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch) should help to allay such concerns. The claimants had long leasehold interests in residential flats, together with the use of designated parking spaces. The freeholder obtained planning permission to construct an additional block of flats on the site of the parking spaces and tried to allocate alternative spaces to the tenants to enable the development to proceed.
Status of the rights granted
The judge gave short shrift to the tenants’ arguments that the parking spaces were included in their demise, or that they had been granted exclusive possession of them and that the spaces must, therefore, form part of their demise. The language of the leases did not, as a matter of construction, indicate an intention to demise the spaces to the tenants and the rights granted could not sensibly be interpreted in that way.
In the absence of a demise, both parties agreed that the rights resembled easements. Neither party tried to argue that the tenants had acquired a fee simple or mere contractual licences. Consequently, the court had to decide whether the rights to use the designated parking spaces were valid legal easements.
The judge took his lead from Moncrieff and side-stepped the decision in Batchelor. He refused to accept that use of the parking spaces would deprive the freeholder of all reasonable use of the land, or render its ownership of the land illusory. It could still cross the spaces (avoiding anything parked there). It could choose, change and repair the surface, keep it clean and remove obstructions from it. It could also lay service media underground, or run wires overhead – and could even build in the air space above, should it wish to do so. On that basis, the tenants’ rights to park in spaces designated for their individual use were valid legal easements.
An alternative solution?
The leases purported to reserve general development rights, but the judge decided that they did not entitle the freeholder to build on the parking spaces. The freeholder had granted the tenants rights to park and would have had to have used clearer language to indicate that their property rights were liable to be overridden.
Did the developer have the right to relocate the parking spaces elsewhere? The freeholder tried to persuade the court that the tenants would not be inconvenienced by their relocation, but the judge applied the decisions in Greenwich NHS Trust v London & Quadrant Housing Association [1998] 1 WLR 1749 and Heslop v Bishton [2009] EWHC 607 (Ch); [2009] 2 EGLR 11.
In the absence of specific provisions to that effect in the easement granted, owners of land burdened by easements are not entitled to extinguish an easement over one area of land and substitute an equivalent easement over another (except by agreement with the dominant landowners). The freeholder had granted rights to park in designated spaces, as opposed to rights to park in spaces from time to time allocated for the tenants’ use, and there was no basis for reading expressly granted rights over identified spaces as being subject to implied rights of alteration.
Remedies
An old legal maxim suggests that where there is a right, there must be a remedy. The phrase encapsulates the belief that legal rights are worthless if they can be infringed with impunity. This was certainly not the case here.
The tenants asked the court for an injunction to restrain the freeholder from interfering with their parking rights. Alternatively, they sought damages to reflect what the freeholder would have agreed to pay, in a hypothetical negotiation between the parties, to relocate the parking spaces elsewhere.
The judge granted the tenants the injunction they sought. Had he decided to award damages instead, he indicated that he would have assessed the amount payable by splitting the estimated profit from the development – in excess of £500,000 – equally between the freeholder and the tenants (after making the freeholder a suitable allowance for its effort and risk).
Legislative reform
The Law Commission has recommended that rights to park should be recognised as legal easements (see Law Com 327: Easements, Covenants and Profits a Prendre), but its recommendations will not become law unless and until the government acts on them. In the meantime, cases will continue to turn on their own particular facts. The good news is that the courts have, at long last, recognised that a right to park in a designated parking space is, in principle, capable of subsisting as a legal easement.
Allyson Colby is a senior associate and professional support lawyer at Pinsent Masons
