When the developer of a block of flats (who owned the freehold) decided to relocate the parking spaces allocated to the tenants so that it could build another block of flats on the car park, the tenants took a dim view of the proposal – especially when contractors arrived without warning and fenced off the existing parking spaces.

The tenants took the view that the allocated parking spaces were theirs to use under their leases – in effect, that each lease was for a specific flat and a specific parking space. The court did not agree, because the leases did not specify that a particular parking space applied.

However, the court also had to consider whether each tenant had acquired the right to occupy ‘their’ space by the creation of an easement. An easement is a right over another person’s land which does not amount to ownership of it or the owner being excluded from using it, but which gives a person other than the owner a legal right to access or use the land.

The court concluded that the developer retained significant rights over the land and could access it for all purposes provided doing so did not conflict with the tenants’ right to park their cars. Accordingly, an easement existed benefiting each tenant and, since the leases did not specifically allow the developer to change the parking area available, the tenants had the right to retain their allocated spaces.


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