In the December 2007 edition of property update, we reviewed the case of Moncrieff v Jamieson, in which the House of Lords had to consider whether a right of way carried with it an implied right to park. It ruled that, in the circumstances of that case, it did.
In Waterman v Boyle, the Court of Appeal was faced with a similar question. The defendants had sold part of their property to the claimants' predecessors in title. The front of both properties shared access via a private drive. The transfer of the claimants' property included a right of way over the drive and the right to park private cars in two designated parking spaces next to the front door. In addition, the claimants had a right of way over a lane at the rear of the property. At the time the land was sold by the defendants there was space for the purchasers to park four cars at the rear; however, the transfer contemplated that the purchasers would build a garage on this area (and this was in fact done).
The claimants argued that their right of way over the drive at the front carried with it an implied right for trade and private visitors to park for the duration of their visit.
Moncrieff established that a right to park was capable of being implied into a right of vehicular access if the right to park was reasonably necessary for the exercise or enjoyment of the right of access. The facts of the case were very unusual. The land with the benefit of the right of way was situated at the bottom of a steep slope by the sea. It was accessible only on foot, by a gate and some steps, and from there over a driveway on the adjacent land to the main road. The House of Lords held that in those circumstances it was reasonably necessary for the right of access over the driveway to include a right to park vehicles on the adjacent land.
The Court of Appeal in Waterman v Boyle thought that the facts of that case were far removed from those in Moncrieff. It found that the parties to the transfer in Waterman had specifically considered parking rights and had made what appeared to be adequate provision for parking. The right of way to the claimants' property could be substantially enjoyed without any further parking right. If the parties had intended any further right of parking there would have been an indication to that effect in the transfer. Where an agreement contained an express right, a right covering the same subject matter would only be implied in exceptional circumstances.
It would have been obvious to the claimants when they bought the property that there were no rights for visitors to park on the defendants' land. If the claimants had visitors with more cars than available parking spaces, there was nothing to stop them asking the defendants for permission for their guests to park (although it is doubtful, given the dispute, whether this would have been granted!).
The court noted that, since the right to park at the front of the property was expressly limited to private vehicles, and there was an entrance from the rear with provision for parking, it would be impossible to imply a right to park commercial vehicles at the front of the house.
Things to consider
The decision to imply a right to park in Moncrieff was not unanimous. Two of the judges thought that the location of the property was simply a matter which any prospective purchaser would take into account when deciding how much to pay for it.
The Court of Appeal in Waterman was of the view that Moncrieff "turned on its special facts". Does this mean that unless a property is situated at the bottom of a steep cliff, it will not have the benefit of a right to park implied into a right of way? Perhaps not. But the existence of dissenting views in Moncrieff would suggest that the threshold is high. Certainly where the documentation conferring the right of way makes some provision for parking, additional parking rights are highly unlikely to be implied.