- A right to park a car in a single defined space is upheld as capable of existing as an easement
- There is no general right for a burdened landowner to relocate an easement which affects his land, unless the grant expressly provides for this
Car parking can be a remarkably contentious issue. There are a number of different ways in which car parking rights may be granted in property transactions - for example, by way of a lease, an easement or a simple contractual licence.
For some years, there was 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 (as it then was) in Moncrieff v Jamieson.
However, doubt remained over a right to park a car in a single defined space, as opposed to a general right to park anywhere in a larger area. This is because an easement is essentially a right to do something over someone else's land. A right cannot be an easement if its effect is to deprive the owner of the burdened land of the benefits of ownership altogether. The way the law on easements has developed in the context of car parking 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. Another way of describing the test would be to ask if the restrictions imposed on the owner by the easement would make his ownership of the land 'illusory' (Batchelor v Marlow).
The exact nature of this test has however come under scrutiny in recent years. The House of Lords in Moncrieff suggested that the test should instead be whether the burdened owner retains possession and, subject to the reasonable exercise of the right in question, control of its land. The Court of Appeal decision in Batchelor v Marlow has however not been overruled and remains the binding test to be applied.
Facts of Kettel v Bloomfold Ltd
In Kettel v Bloomfold Ltd, the claimants each owned a long lease of a residential flat in a block in the East End of London. The defendant owned the freehold of the development. Each flat had the benefit of the use of a designated parking space.
The developer took the view that it was entitled to relocate the car parking spaces, in order that it could build another block of flats on the car park. It wrote to the tenants advising them to get in contact to arrange to park somewhere else. The developer's contractors then, without warning, fenced off the existing spaces. Faced with objections from the tenants, construction work did not proceed, but the area remained fenced off.
There were two main issues arising in the case. The first was the nature of the tenants' rights to use the car parking spaces. The second issue was what remedy the tenants should be entitled to for the interference with those rights.
Nature of the car parking rights
The tenants had 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. This argument was rejected by the court because of the way the leases had been drafted, although it is possible to draft a lease so that it does include a car parking space (and some leases are drafted that way).
The distinction between having a lease of the space, and a right to use it by way of an easement, is important because it affects whether the landlord can still do anything with the space. Even if the tenant has an easement over the space, the landlord may still be able to make some use of it. If on the other hand the tenant has a lease of the space, then the tenant will have exclusive possession, not just of the floor space, but usually the air space above it as well, and the landlord will effectively be excluded from it altogether.
Having discounted the possibility of the spaces being included in the tenants' leases, the court then had to consider whether each tenant's right to use their designated space was an easement.
Can a right to park a car in a single space be an easement?
Both parties - and the court - accepted that the right to park a car is in principle capable of existing as an easement.
Applying the test in Batchelor v Marlow, the court thought 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, save to the extent that it would be inconsistent with each tenant's right to park a car. So, for example, the developer could:
- pass across the space (on foot or in a vehicle), as long as there was no car parked in it
- choose, change and repair the surface
- lay pipes and other service media underneath it
- run overhead wires above it
- build above it (and this was indeed the developer's alternative proposal, if it was not able to relocate the tenants).
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.
Could the developer move the spaces?
The developer tried to argue that it had a right to change the designated parking spaces. The court rejected this. 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 not however been drafted in that way, and no right to vary the space would be implied.
Things to consider
The Law Commission has recommended that the jurisdiction of the Lands Chamber of the Upper Tribunal to modify restrictive covenants should be extended to easements. If this recommendation is enacted then it may provide an alternative route for developers in this situation. But, at present, there is no indication of when, or indeed whether, the Law Commission's proposals will be taken forward by the government.
One final point to note is that the leases did purport to reserve a right to develop the rest of the site to the landlord. However, this was not well drafted and in any event the court thought that it would not give the right to erect a building which constituted a substantial interference with an express easement to park.
In our article "When the courts will grant an injunction to prevent development?", we review the remedy that the tenants were entitled to for the interference with their easements.