Right to park
The courts have vacillated for years over whether rights to park can constitute valid legal easements. In Batchelor v Marlow [2003] 1 WLR 764, the Court of Appeal held that the parking rights claimed did not exist in law as they would deprive the servient landowner of any reasonable use of his land, which would render his ownership “illusory”.
Right to park The courts have vacillated for years over whether rights to park can constitute valid legal easements. In Batchelor v Marlow [2003] 1 WLR 764, the Court of Appeal held that the parking rights claimed did not exist in law as they would deprive the servient landowner of any reasonable use of his land, which would render his ownership “illusory”. Nonetheless, the House of Lords decision in Moncrieff v Jamieson [2007] UKHL 42 suggested that a right to park vehicles was capable of existing as a valid easement. However, the decision did not determine the issue conclusively because it dealt with the law in Scotland. In addition, doubts remained about the parameters within which parking rights could exist, because the right recognised in Moncrieff was a right to park anywhere within a defined area, as opposed to a right to park in a space that would accommodate only one vehicle. Virdi v Chana [2008] EWHC 2901 (Ch) took us one step further. However, the right established in that case was a right to park over an area that was too small to accommodate a vehicle (because the servient landowner did not own the entirety of the parking space). Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch) completes the jigsaw. It confirms that a right to park a car in a designated parking space can constitute a fully fledged easement in English law. The claimants had long leasehold interests in the flats in a development, together with the right to use a designated parking space. They sought an injunction to prevent the construction of an additional block of flats on the site of their parking spaces. They tried to persuade the court that the parking spaces had been demised to them (which would have stymied any future development). Alternatively, they claimed the benefit of easements, as a result of which the developer would be forced to retain the parking spaces and construct any new building in the air space above them. The judge decided that the car parking spaces had not been demised to the tenants, but did uphold their claims to easements. The parking rights did not deprive the developer of all reasonable use of the land. 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 above the spaces. These rights were far from illusory; they were necessary and important. The leases purported to reserve development rights, but the judge decided that the provisions did not permit the entire destruction of the parking rights. Could the developer relocate the parking spaces elsewhere? In the absence of specific provisions to that effect, the judge ruled that servient landowners are not entitled to do so without agreement. The judge granted an injunction to prevent the developer from interfering with the parking rights. Interestingly, had he decided to award damages instead, the judge indicated that he would have assessed the amount payable by splitting the estimated value generated by the development equally between the developer and the tenants (after making a suitable allowance to the developer for its effort and risk). Allyson Colby, property law consultant
