Commercial Law - Parking Rights Problems

Where a tenant takes a lease of commercial or industrial premises the landlord may agree to allocate designated parking spaces for the exclusive use of the tenant.

This is, of course highly desirable from a tenant’s point of view as it provides commercial tenants with parking facilities for exclusive use by its customers and thereby encourages trade. Similar arrangements are also be found where an estate owner is selling the freehold interest in commercial units on an estate.

However, there can be problems. The grant of a parking right over land is known as easement; but if the extent of the grant amounts to an exclusive right to possession of the land it cannot be an easement (Copeland v Greenhalf [1952].

In order to get around this problem rights to park cars that are intended to take effect as easements are usually drafted by solicitors so that the grantee has a right to park a specified number of vehicles within a designated area, but is not specifically allocated individual spaces. However, such a drafting scheme is not always free of contention.

In the case of Batchelor v Marlow, (28 June, 2001) the Court of Appeal ruled that a right to park in a designated space cannot be an easement if the right amounts to the grant of the entire beneficial use of the land. The case concerned a dispute that arose where a tenant was granted a right to park on such part of the landlord's land as the landlord specified from time to time provided that spaces were available. The landlord could also make regulations relating to car parking. The landlord sought to reduce the area available for parking and a dispute arose.

The High Court, which had considered the case before it came to the Court of Appeal proceeded on the basis that the right granted to the tenant was an easement. The Court of Appeal considered that whether there had been actionable interference with the right would turn on the same facts and issues as it would if it were an easement regardless of whether the right could properly be considered to be one.

The Court of Appeal rejected an argument put forward by the landlord that because the lease allowed the landlord to designate the car parking area from time to time and to vary it, this meant that the landlord had a power to end the right altogether.

The Court held that to succeed in a claim for interference with such a parking right there has to be substantial interference. In this case the reduction of available spaces in the car park area from 12 or 13 to 4, did amount to a substantial interference.

Fitzhugh Gates Solicitors Comment

If a right to park is not an easement, it may alternatively be an overriding interest (i.e. a legal right born out of actual occupation of land). It may also be a contractual right that does not amount to an overriding interest (because the grantee is not in occupation). In other cases it may amount to a separate lease of a right to park) In conclusion the law is unclear in this area and the particular species of legal right will depend on the individual facts and circumstances in each case.

Frances Hovey