Car parking can be a bit of a nuisance.
Parking issues can cause frustrations, and have on rare occasions led to violence. But it’s the frustration that’s the worst part. You often find that the parking space you jealously guarded has been occupied by another driver – unjustly in your opinion, or you are told you aren’t legally permitted to park your car outside your own property. You may even feel you have a contractual right to park in a particular space, only to be told that you are depriving the owner of the said land’s reasonable use of it.
So what’s the legal position in regards to car parking?
Do you have a divine right to park where you like, or are you constrained by rules, regulations, and legal definitions?
There are a number of different ways in which car parking rights may be granted in property transactions, for example, by way of a simple contractual licence, a lease, or an easement. However for many years there was legal doubt over whether a right to park a car was capable of being an easement at all. This doubt was laid to rest by the decision of the House of Lords, (now Supreme Court) in the case of Moncrieff v Jamieson.
Never the less, there remained a doubt over the right to park a car in a single defined space, as opposed to a general right to park anywhere in a larger area. In essence this was because of the strict definition of an easement. An easement is essentially a right to do something over someone else’s land. However, a right cannot be an easement if it effectively deprives the owner of the burdened land of the benefits of ownership altogether. Because of the way the law on easements has developed in the context of car parking, this means that a right to park a car cannot be an easement if the owner of the burdened land is left without any reasonable use of it. The decision about whether a burdened owner retains possession is a matter for the courts to decide. However, there has been some clarification on this point of law in the recent case of Kettel & Ors v Bloomfold Ltd, 2012.
In that case the claimants each owned a long lease of a residential flat in a block in the East End of London.
Each flat had the benefit of the use of a designated parking space. The defendant owned the freehold of the development, and reserved the right to re-develop neighbouring property if appropriate, despite such re-development affecting or diminishing the light or air enjoyed by the tenants. The landlord wanted to develop a new building on land which included the car parking spaces that had been granted to the tenants. The landlord claimed that it was entitled to require the tenants to accept alternative car parking spaces in place of those originally allocated.
The landlord’s contractors fenced off an area that included the tenants’ car parking spaces.
However, faced with objections from the tenants, construction work did not proceed, but the area remained fenced off. The two issues the High Court had to decide was firstly, what was the nature of the tenant’s rights to use the car parking spaces, and secondly what remedy should the tenants be entitled to for the interference with those rights?
The tenants initially argued that the spaces were included within the demise of each of their leases, so that the lease extended not just to the flat itself, but also to the car parking space. However, the court rejected this argument because of the way the leases had been drafted. The distinction between having a lease of the space, and a right to use it by way of an easement, was considered to be vitally important because it affected whether the landlord could still do anything with the space. Even if the tenant has an easement over the space, the landlord could potentially still be able to make some use of it. However, if the tenant had a lease of the space, then they would have exclusive possession, not just of the floor space, but also of the air space above it as well, so the landlord would effectively be excluded from it altogether. Once the court discounted the possibility of the spaces being included in the tenants’ leases, it then had to consider whether each tenant’s right to use their designated space was an easement.
Applying the test in Batchelor v Marlow, the court decided that the rights which could be exercised by the developer over the car parking spaces meant that the developer was not left without any reasonable use of the land, and its ownership of the car parking spaces was not rendered illusory. The developer could do anything that a freeholder could normally do, except to the extent that it would be inconsistent with each tenant’s right to park a car. The court ruled that, far from being illusory, these rights were important and even necessary. On that basis the tenants’ individual rights to park in designated spaces did take effect as easements.
The developer tried to argue that it had a right to change the designated parking spaces.
The court rejected this on the basis that a burdened landowner does not in general have the unilateral right to extinguish an easement over one area of land simply by providing an equivalent easement somewhere else. An easement may be granted on terms which expressly permit the burdened landowner to vary the space which is allocated from time to time, or for example in the context of a right of way to vary the route of the easement. The easement in this case had however not been drafted in that way, so no right to vary the space would be implied.
