Saeed v Plustrade Ltd

Respondent lessee parking car on forecourt of block of flats – Appellant lessor carrying out refurbishment works – Lessee unable to park – Lessor reducing number of parking spaces – Whether substantial intereference with lessee’s right to park – Appeal dismissedThe claimant was the lessee under a long lease of a flat. The defendant was her lessor. The second schedule to the lease provided “7: The right for the lessee in common with all other persons entitled to the like right to park his private motor 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”. The forecourt to the premises had a designated parking area with space for 13 cars in the unmarked bays. The defendant decided to refurbish the parking area and define the parking bays. Throughout this period no parking was possible, and posts subsequently delineated the parking spaces, reducing the number to 12. Between May 1997 and August 2000, the forecourt could not be used for parking because the area was required for the defendant’s contractors, which were refurbishing the building. In August 2000 the defendant informed the claimant that it would honour an informal agreement with the planning authority, and provide four marked spaces for the lessees. The claimant issued proceedings seeking an order that the defendant permit her to park in the specified area in which she had been permitted to park until 1997, plus damages. She contended that she had a right, in the nature of an easement, to park on the forecourt, and that, from 1997 to 2000, the interference with that right had been total. The judge held, inter alia, that para 7 of the lease gave the claimant an easement to park in the spaces on the forecourt to the extent that space was available from time to time, subject to the lessor’s right to specify alternative spaces from time to time. The defendant had substantially interfered with that right from 1997 to date. Further, the scheme sought by the defendant under which the claimant would be restricted to parking on only four car-parking spaces, constituted a substantial interference with her right. The defendant appealed. The issues were whether: (i) the defendant had infringed the claimant’s legal rights in preventing her parking between 1997 and 2000; and (ii) whether the defendant had infringed the claimant’s legal rights in reducing the parking area as from 1 August 2000. Held: The appeal was dismissed. 1. In the circumstances of the instant case, it did not matter whether the claimant’s legal rights of parking should be categorised as easements. The purported complete determination by the defendant of the claimant’s right to park, which took effect between May 1997 and August 2000, was a clear derogation from the right to park to which the claimant was entitled under the lease. It entirely frustrated the purpose for which the right to park had been given to her by para 7 of schedule 2 to the lease, and had been in the contemplation of both parties to the lease at the time of the original grant. That right had never been varied or determined. The claimant’s right had been infringed, and her claim to damages for that period was established. 2. The relevant date for determining whether there had been substantial interference with the claimant’s right was the date of the interference. It was not, as the defendant contended, necessary to compare the position with the parking situation in 1985 when the claimant had taken over the lease. Before the interference, she was able to park on some 12 or 13 spaces, in competition with other lessors. She was now restricted to three or four spaces, but with the same level of competition. This constituted substantial interference with the enjoyment of her right. Jonathan Brock QC (instructed by Rochman Landau) appeared for the appellant; Paul Morgan QC and Alexander Hill-Smith (instructed by L Bingham & Co) appeared for the respondent. Sarah Addenbrooke, barrister