Car Parking Rights - Moncrieff v Jameson 12007J. UKHL42
For some years there has been a debate about whether an easement to car parking exists. The argument goes that an easement is a right that one person enjoys over another person's land, there can be no easement which constitutes exclusive possession.
The earliest cases which discussed this issue?, in fact, Involved storage, as in Copeland v Greenhalf  Ch. 488, where a claim for an easement of storage of trailers on a narrow stretch of agricultural land failed as it amounted to a claim of exclusive possession. If exclusive possession is being claimed as a property right then this would have to arise as an estate in land.
Several Commonwealth decisions enforced this argument throughout the 1960's arid 1970's and then, in 1982, a first instance arid, unfortunately, unreported decision in Newman v Jones. This case involved parking a car on a first come, first serve basis around a block of flats The judge decided that, as there was a genuine sharing and no guarantee to an individual space, this could constitute an easement. Therefore, here there was an easement but, if there was an allocated space in which a flat owner parked there could not be an easement.
During the following twenty years, cases suggested problems but with no definite conclusions Then, starting with a commercial property case Batchelor v Marlow in 2001 and following on with a case involving residential flats Saeed v Plustrade Ltd and Another , the Court of Appeal held that Newman v Jones was correct There could be no easement to park a car in an allocated space as this constituted a claim of exclusive possession which was contrary to the whole concept of an easement This was subsequently followed in two further cases Central Midland Estates v Leicester Dyers [20041 and Montrose Court v Shamash . In the latter case an easement was held to genuinely exist as there were fewer car parking spaces around the 19th Century block of flats than there were long leaseholders, and occupiers were genuinely required to share. However, again It was recognised that a right to an allocated space could not constitute an easement.
Why this distinction is important is that if a right to park in an allocated space cannot: constitute an easement and is not demised, then it cannot amount to a property right It will merely amount to a licence. This, as in Saeed v Plustrade Ltd above, will bind the original landlord/developer but will not be binding against a purchaser of the reversion Moreover, historically, car parking in relation to leaseholds which may have a major impact on value would be granted in the schedule of rights and not demised i.e. a purported easement would be created As the majority of car parking rights give allocated spaces, this would render the lease defective.
Although cases such as Saeed v Plustrade Ltd seem to have taken time to filtrate through to practice over the past few years it has become increasingly common to demise car parking spaces in leasehold flat developments with the qualification that the developer commences the development in that manner. It is very difficult to change the developer's mind mid-way through! The service charge must also be changed as the tenant would normally be responsible for maintenance of their demise. In anything but the smallest development, a landlord would be advised to be responsible for maintenance of car parking spaces and should then be able to collect the cost via service charge.
If a development is already underway then a landlord is unlikely to accept an argument to demise car parking if existing tenants only have purported easements. Moreover, deeds of variation may not be possible in anything but the smallest developments. In this situation a landlord may be prepared to accept a deed of covenant whereby any purchaser of the reversion is bound by the car parking rights contractually. This should be supported by a restriction at the Land Registry whereby such a purchaser cannot become the new registered proprietor without the written consent of the tenant, who will give their consent if a deed of covenant is entered into.
Slowly then, things were settling down and the argument that car parking rights in allocated spaces should be demised was holding sway Then came the House of Lords decision of Moncrieff V Jamieson in late 2007 This is a Scottish case from the Outer Hebrides involving the law of servitude It is not a direct precedent in England and Wales, however, the House of Lords allowed a right to park on an allocated space as a servitude. Moreover, two of the judges including Lord Neuberger, doubted whether the previous Court of Appeal cases from England were correct. It seems that there may be such a thing as an easement to park in an allocated space after all.
I have already seen Moncrieff quoted by developers' solicitors as a reason for not demising car parking. It might also be noted that leaseholds, and flats in particular, contain several rights which would be defined to constitute exclusive possession, which should possibly be demised. Examples include for example, exclusive use of a balcony, storage and perhaps, most significant of all in terms of the effect on valuing a roof terraces all of which potentially could be withdrawn by a reversioner.
Note: In Virdi v Chana  EWHC 280, the High Court refused to follow Moncrieff as they felt bound by the English Court of Appeal decisions.
Kettel and others v Bloomfold Ltd  EWHC 1422 (Ch) - car parking in the same space all the time amounts to exclusive possession and the right should have been demised and cannot be an easement: see Batchelor v Marlow  1 WLR 764. Parking in whichever space becomes available without an absolute tight can constitute an easement. Here, the landlord gave the tenant exclusive rights to park but the tenant could be moved on management grounds. This was held to be an easement as there was no exclusive possession.