Settled Practice Led To Parking Easement

At issue in this case¹ was the correct interpretation of reservation of rights clause in a headlease of a block of residential flats. The building - Duchess of Bedford House (DBH) in Holland Park - is a mansion block facing onto a private road which, in turn, is part of a garden square (S). To complicate matters, within that garden square are two other mansion blocks – the head lessee of which is the respondent (C). C is also head lessee of the roads and gardens and other parts of S.

DBH’s management company, and four individuals, sought a declaration as to their parking rights in S. A brief timeline of key dates:

• 1938 - the Phillimore Estate grants a long lease of DBH
• 1938-1969 – Flats at DBH let out under short, three-year, Rent Act-protected tenancies
• 1969 – C plus roads, garage block and central gardens of S are demised by Phillimore Estate to C’s predecessor in title under a long headlease
• 1974 – 1938 leases were surrendered and new long lease of DBH entered into. Meanwhile, a planning application for works to S to control alleged parking hazards was refused (as was an appeal)
• Short Rent Act-protected tenancies of flats at DBH were replaced over time by long underleases – of which the appellants were lessees.

A reservation within the 1969 headlease included “all other easements quasi-easements and rights belonging to or enjoyed by any adjoining or neighbouring premises”.

The 1974 headlease included a confusingly expressed carve out clause. A clause excluded a wide category of rights and interests from the overall demise – except for "those now subsisting".

It was not in dispute that the parking right was passed down by means of the 1974 headlease, then further passed down to individual flat owners on the grant of the long underleases to them over time.

Easement

The tenants argued that the settled practice of parking was an easement, a quasi-easement, or a right belonging to or enjoyed by DBH - an adjoining or neighbouring premises, its residents and their visitors. Therefore, it was reserved to the freeholder by the 1969 headlease.

The respondent countered that there was no right to park reserved as a legal easement to the lessor under the 1969 headlease because, for example, there was insufficient activity by DBH residents at the time of the 1969 headlease to ground such a wide-ranging right.

The CA found on the facts that the leaseholders had acquired a legal easement to park on the private road. It ruled that the combination of the reservation in the 1969 headlease and the residents’ ‘settled practice’ of parking there led to the conclusion that a legal easement had been created.

Giving the lead judgment, Asplin LJ commented: “A reasonable reader would have had no doubt as to the natural and ordinary meaning of "rights belonging to and enjoyed by" and would not have hesitated to say that the right to park on the forecourt in competition with others fell within it.

“The natural and ordinary meaning of those words as understood in 1969 would have extended to the right to park.”

What does this mean?

This was not a straightforward case and successive courts disagreed on the correct conclusion. However, the CA’s approach is helpful for practitioners in the correct approach to take when determining issues around parking where lease terms are in dispute.

¹Duchess Of Bedford House Rtm Company Limited & Ors v Campden Hill Gate Limited [2023] EWCA Civ 1470