Right to park Amy Rogers explains why it isn’t always easy to tell whether a tenant’s right to use a parking space is a legal easement
Tenants’ leases often expressly grant them an exclusive right to use a particular parking space, as opposed to conveying to them a specific parking space as part of the lease demise. Alternatively, one party may claim that he or she has acquired a right to park on the land of another by prescription, having exercised the right for at least 20 years without force, secrecy or permission.
Easement, licence or part of the demise?
An easement is a right granted to benefit one piece of land (the dominant land), that is enjoyed over another piece of land under separate ownership (the burdened, or servient land). If an easement has been granted, it is extremely difficult to extinguish it without the parties agreeing to its release, or to make out a successful case that it has been abandoned. If a right to park is not an easement, it may be a contractual licence, which cannot confer any interest in the land and will not automatically bind successors in title.
To be a legal easement, a right must be capable of forming the subject matter of a grant, and, if the right amounts to possession of land, it cannot be an easement. This is where the problems concerning rights to park have arisen. Rights to park that claim an exclusive right to use a particular parking space may amount to a possessory interest in the parking space, instead of an easement or contractual licence.
Easements and the ouster principle
Copeland v Greenhalf established the principle that an easement is a right over land, and not a right to possession of the land or a right of joint user of it. If the servient owner loses control or occupation of their land, the right has gone beyond the legal concept of an easement.
This “ouster principle” was discussed in London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd, which stated that an easement cannot be claimed if it deprives the servient owner (the person whose land is being parked on in right to park cases) of any reasonable use of its land.
The Court of Appeal decision in Batchelor v Marlow and another went further in considering the meaning of “reasonable use”, and set out a test to be applied in order to decide whether a right to park in a designated space was an easement. For such a right to park to be incapable of existing as an easement, its exercise would need to be extensive enough to deprive the servient landowner of the reasonable use of its land so as to leave the landowner with just “illusory” ownership.
In this case, the Court of Appeal found that the defendants’ right to park six vehicles on the land during normal business hours from Monday to Friday left the servient landowner with only illusory ownership, so the right claimed could not be an easement.
Reasonable use
Moncrieff and another v Jamieson and others, which was heard by the House of Lords on appeal from Scotland, criticised the test applied by the Court of Appeal in Batchelor. It suggested that the correct test to apply when deciding whether a right to park was a legal easement was whether the servient owner retained possession and, subject to the reasonable exercise of the right in question, control of the servient land.
If the person whose land is being parked on does not have such possession and control of the land in question, they will have been sufficiently “ousted” from their land, and the right to park is therefore not capable of existing as a legal easement.
Moncrieff concerned Scottish servitudes as opposed to English easements, and the comments made about the correct test to apply when deciding whether a right to park is a legal easement were obiter. Accordingly, Batchelor remains binding on the lower courts of England and Wales, and is yet to be overruled.
However, the wider interpretation of reasonable use set out in Moncrieff was also applied in Virdi v Chana and others. In this case, the lower-level Land Registry adjudicator had found that a right to park claimed by prescription was capable of being an easement, and the High Court agreed.
The owner of the land subject to the claimed right to park only owned part of the servient land, which also included a section of accessway owned by a third party, and the part the landowner owned was too small to allow a car to park. To do so, the landowner would need to commit trespass.
Applying Batchelor, as the exercise of the right to park did not prevent the landowner from using its part of the servient land for the purposes for which it could in fact be used at a practical level, the exercise of the right did not render the landowner’s ownership of the land “illusory”: the right could therefore exist as a legal easement.
Applying Moncrieff led to the same conclusion. The right to park on the servient land did not prevent the landowner from keeping control and possession of its
part: the right could therefore exist as a legal easement.
Thwarting redevelopment
In Kettel and others v Bloomfold Ltd, eight tenants in a block of flats had each been granted the right to use a designated parking space. The defendant freeholder wanted to redevelop on the common parts, which included those eight parking spaces. The freeholder wrote to the tenants to inform them that they were required to accept alternative parking spaces. Shortly after this, the parking spaces were fenced off, and the tenants sought an injunction to prevent the proposed redevelopment.
The court found that the existence of an easement was not prevented because the freeholder was able to exercise rights over the space – it had reasonable use of the land and its ownership of it was not illusory. It found that the freeholder could use the land as a freeholder usually would, for example, by walking or driving freely over the space if no cars were in situ or avoiding those that were; by repairing the surface; or by laying pipes for the benefit of the estate buildings.
Offering an equivalent easement elsewhere by requiring the tenants to use alternative car parking spaces did not prevent the tenants from pursuing legal action in connection with the original easement: such variation was not express and could not be implied.
The tenants also argued that the landlord had not reserved a right to build on the parking spaces. There was a redevelopment clause in the lease, but the court found that this could only override the tenants’ right to park where it had been written in clear language. Here, it had not been and the tenants were granted their injunction, even though the landlord pressed for damages.
Owing to the potential problems outlined in the cases, rights to park cars that are intended to be easements are often drafted so that the tenant has a right to park a specified number of cars within a designated area, as opposed to individually designated spaces.
The High Court has considered that such parking rights are capable of existing as easements in the absence of specific higher authority, and the Court of Appeal case of Saeed v Plustrade Ltd left the question of whether such rights to park could exist as legal easements deliberately open.
Further case law on the question seems inevitable.
Case references
• Copeland v Greenhalf [1952] Ch 488; 159 EG 268
• London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] EGCS 100
• Batchelor v Marlow and another [2001] 1 EGLR 119
• Moncrieff and another v Jamieson and others [2007] UKHL 42; [2007] PLSCS 201
• Virdi v Chana & others [2008] EWHC 2901 (Ch); [2008] PLSCS 329
• Kettel & others v Bloomfold Ltd [2012] EWHC 1422 (Ch); [2012] PLSCS 153
• Saeed v Plustrade Ltd [2001] EWCA Civ 2011; [2001] PLSCS 283
Why this matters
The question of whether rights to park are capable of existing as legal easements, and if so, how, has taxed the courts, and is likely to continue to do so.
The question matters because, if an easement can be established and registered, it will bind all future purchasers of the land subject to the right (the “burdened land”), and the landowner cannot substantially interfere with the enjoyment of that right.
Accordingly, if a right to park is deemed a legal easement, this can have a real impact on the value of the burdened land. This can cause particular problems for landowners that are wishing to redevelop parking areas within the common parts of their properties.
If their tenants can park in these areas because they have easements granting them the right to do so, then all their tenants need to prove is that the proposed redevelopment substantially interferes with their parking rights to obtain an injunction preventing the redevelopment.
Accordingly, if a right to park can in fact exist as a legal easement, this can have a hugely detrimental effect on a landowner’s use of, and plans for, its property. As a general principle, if a car parking right prevents reasonable use of the burdened land by its landowner, there can be no legal easement.
However, the case law concerning the meaning of “reasonable use” confirms that this remains a question of degree, with each case turning on its own facts.
Certainty may have to wait for the government’s approval of the draft bill included with the 2011 Law Commission report Making land work: easements, covenants and profits a prendre.
The report recommended that car parking easements should be valid even if they prevent the servient landowner from making any reasonable use of the land, as long as they stop short of granting exclusive possession to the person claiming the right to park.
It is also worth noting that the case law is relevant to any question as to whether rights claimed can exist as legal easements. If the right claimed prevents the ordinary use of the land by its owner, the right cannot be an easement.
For now, landowners hoping to redevelop their properties by carving out additional space from common parts are left with uncertainty where those parts are subject to parking and potentially other rights.
Amy Rogers is an associate solicitor at Cripps LLP
