Interference with parking rights

A lease may contain a right for the landlord allowing him to use or deal with his retained land even though to do so would interfere with the rights that have expressly been granted to his tenants. For example, where a landlord has retained the common parts giving access to a building, he may expressly reserve the right to alter the layout or otherwise improve or interfere with the access even though he is interfering with the right he granted to his tenant to have access to the demised premises. Without the appropriate reservation, his actions may amount to nuisance or derogation from grant.

The recent case of Saeed -v-Plustrade [2000] PLSCS 274 has shown that although appropriate reservations may allow landlords some leeway, they will not go so far as to permit a landlord to obliterate the rights altogether. In this case, the tenant of a residential flat, Dr Saeed, was granted a right to park her car on any part of the premises designated for that purpose by the landlord when space was available. From 1985 to 1997 space for 13 cars was made available on the forecourt of the premises. This area was then refurbished following which the forecourt was left with 11 marked out spaces, with lockable posts. The landlord announced that parking on the forecourt would become unavailable to the tenants. The forecourt was unavailable for use in conjunction with the refurbishment of some existing flats and the construction of two penthouse apartments. The tenants were told that four of the spaces would be reserved for the existing flats on a first come first served basis for an annual fee of GBP 50. Dr Saeed successfully claimed that the right to park contained in her lease was in the nature of an easement.

Although the landlord was entitled under the lease to change the location of the parking places, there was nothing in the lease that empowered the landlord to extinguish the right to park. As the right was in the nature of an easement it would be exceptional to hold, in the absence of express wording, that the right was determinable at the will of the landlord. The reduction of the number of available spaces amounted to a substantial interference and the claim for payment was improper. The landlord was ordered to pay GBP 6,300 damages for compensation up to the date of the hearing leaving open the question as to whether further compensation could be claimed if additional spaces were not made available.

As is often the case, the clear message is that if when granting a lease, a landlord envisages that changes may need to be made in the future, express wording allowing him to alter or remove any benefits associated with the lease should be incorporated.

For further information please contact Caroline Potter at [email protected] or on +44 (0)20 7367 2721.