Q&A: A parking problem

Hope Barton and Kate Traynor review a decision about the acquisition of parking rights and how settled practice can be converted into a legal right. Question I am the head lessee of a residential block, including the roads and central gardens. The residential block (Block 1) neighbours a mansion block facing a private road. There is also one other mansion block. As part of the head lease granted in 1972, the freeholder reserved certain rights as lessor, including a reservation of “all other easements quasi easements and rights belonging to or enjoyed by any adjoining or neighbouring premises”. The residential long leases were surrendered, and I entered into a new headlease in 1984 with an exclusion clause. The owners of the residential long leases of the flats at Block 1 suggest that, when the 1972 headlease was granted, it was the settled practice of the residents parking on the private road, which passed on the grant of the 1984 headlease. 1) Can settled practice of parking residents be converted by operation of section 62 of the Law of Property Act 1925 into a legal easement? 2) Does the answer to the first question alter if there is a reservation of rights clause, or would the exclusion clause prevent the acquisition of a parking right? Answer On the first question, subject to the construction of the 1972 headlease, in broad terms, where there has been a settled practice of parking by flat occupiers, a right to park appurtenant to Block 1 can arise under section 62 of the 1925 Act. In relation to the second question, if, on the true construction of the 1984 lease, the carve-out clause only operates to exclude the creation of new rights, then it would follow that subsisting rights, including the right to park, were conveyed. In short, the residential long leaseholders are likely to have successful grounds to assert they have the right to park outside Block 1. Explanation The Court of Appeal recently considered the issue in its judgment in Duchess of Bedford House RTM Co Ltd v Campden Hill Gate Ltd [2023] EWCA Civ 1470; [2023] PLSCS 202. In that case, the appellants were the residential long leaseholders of flats in a mansion block in Holland Park known as Duchess of Bedford House, fronting the eastern side of a private road, surrounding a garden square known as Sheldrake Place. The residents regularly parked on Sheldrake Place and had done so since the Second World War. In 1969, the freeholder granted a long headlease to the respondent, Campden Hill Gate’s predecessor in title, which reserved, in favour of the freeholder, “easements, quasi-easements and rights belonging to or enjoyed by any adjoining or neighbouring premises”. The appellants sought a declaration that such rights included car parking rights on the basis it was settled practice of parking on the private road at Sheldrake Place and that section 62(2) of the 1925 Act would convert their settled practice into a legal easement, which the residential long leaseholders could therefore exercise (section 62 implies that all privileges, easements, and rights benefiting the land that are in use or existence at the time of transfer are included in the conveyance, unless expressly excluded). However, by a second headlease in 1974, an express right of way was granted over Sheldrake Place, but the 1974 headlease contained an exclusion clause, which carved out “liberties, privileges, easements, rights or advantages… over land forming part of the freeholder’s estate… except those now subsisting or which might restrict or prejudicially affect the future rebuilding alteration or development or redevelopment thereof or of any other adjoining or neighbouring property.” The respondent, on the other hand, asserted that the exclusion clause disapplied the right to park under common law and section 62(2) of the 1925 Act, as contrary words were expressed (section 62(4)). The Court of Appeal considered the construction of the 1969 headlease and the exclusion clause in the 1974 headlease. In doing so, the Court of Appeal found as follows: 1) On the true construction of the 1969 headlease, the reservation clause was sufficient to include the right to park on Sheldrake Place due to the settled practice of parking, which had been converted by section 62(2) of the 1925 Act into a legal easement. 2) The parking right subsisted on the grant of the 1974 headlease, such that it was not caught by the carve-out clause. This conclusion was reached because the carve-out clause was to be construed restrictively, as clear words are necessary to rebut section 62(2) and the carve-out clause was too broad in terms. The decision in Duchess of Bedford House was determined on the case’s specific facts, but provides a useful analysis when considering conversion rights into easements under section 62 of the 1925 Act, and the construction of carve-out clauses, which, in light of this decision, should be construed narrowly and be “grounded in reality”. Hope Barton is an associate at Charles Russell Speechlys LLP, and Kate Traynor is a barrister at Landmark Chambers Photo by Anthony Fomin/Unsplash