Rights to Park
More often than not, a block of flats within a residential development has the benefit of parking. It has been common practice therefore to include in the lease an exclusive right to park, in an allocated parking space.
There has been a growing uncertainty however as to whether such a right can actually subsist as a legal easement.
For many years the debate had been academic. The issue was considered, however, in Batchelor v Marlow (2001) which decided that a right to park could exist as an easement, but only if it did not amount to exclusive possession, such that the owner of the land was left with no reasonable use of the land. This decision was confirmed in two further cases in 2004 and 2006, following which a non exclusive right to park on a first come first serve basis i.e a genuine sharing of parking spaces, constituted a legal easement but a right to park exclusively in an allocated space did not.
The waters were muddied, however, by the case of Moncrieff v Jamieson (2007) where the House of Lords applied a different test to establish a right to park. They argued that a right to park could exist provided it did not prevent the land owner from retaining control and possession of the land, as opposed to the land owner being without reasonable use of the land.
Although this case was decided by English judges, it was ruling on a Scottish case and therefore it did not over rule the previous findings of Batchelor V Marlow.
In the subsequent case of Virdi v Chana (2008), therefore, the High Court refused to follow Moncrieff, stating it was bound by the decisions of the English Court of Appeal.
The courts have left us in the uncertain position, therefore, of having two different tests to determine whether a right can exist as an easement.
When granting leases, therefore, where the dwelling has the benefit of parking, we would suggest the best solution is to either include a parking space within the demise or to grant a non-exclusive right to park in any one of a number of parking spaces, on a first come first served basis.