Residential Leasehold - Parking Cuckoos

Linda Bell, Associate in the Residential Leasehold team at Brethertons looks at the common issues with parking at leasehold developments.

We hear more and more often of issues with parking on residential sites both leasehold and mixed leasehold/freehold. Indeed perhaps one of the most common issues that arises for tenants, when in occupation of premises under a lease, is that of parking. We hear: What rights do I have in respect of parking? Which spaces am I allowed to park in? Can you move my spaces around? Can I park closer to my flat as I have difficulty walking? My space is not big enough for my vehicle? Can I park my work van on the site? I can’t get to my space because someone is obstructing it. Can I double-park? How can I stop people using my spaces? Are there tickets, passes or parking permits? Who deals with maintenance and repair of the car park? Why is someone else parking in my space?

The answer to many of these concerns lie in the lease.

There are several possible natures of parking rights:

Demised Parking Spaces

Car parking spaces can be included within the demise of the premises granted to you under the lease. This will mean, in simple terms, that the lease will define the parking space demised to you. You have “exclusive possession” that parking space. In essence it is yours. No one else is permitted to park in it. It would be trespass to do so.

Rights to Park

It is popular in leases to have a right to park either:

  1. General right to park within the car parking area on a first come first served basis. This comes with the risk that the parking area may be full and/or you would be competing for parking spaces with other tenants of the building. However, this does come with the flexibility of being able to park anywhere within the parking area, but people can soon be surprisingly territorial and issues can result from inconsiderate parking and parties monopolizing parking bays and indeed occupying more than their allocated share.
  2. Exclusive right to park in allocated specific parking spaces. The lease will allocate specific parking bays for the term of the lease but with a right for the landlord to nominate alternative areas in the event that the use of the specific parking bay is frustrated. With allocated parking you will have guaranteed parking spaces and you will then not have to compete with other tenants to use your own parking area. Well, that is the idea, but it appears it does not always prevent cuckoos parking where they should not be.

Restrictions on Parking

Despite a lease containing parking rights these are often restrictions controlling parking. The intention of the restrictions is to protect the residents of the development.

Covenants

It is not unusual for residential leases to restrict parking on the development other than in allocated parking areas but more commonly and more likely to cause issues is the restriction against parking anything other than domestic roadworthy vehicles and restrictions against parking commercial vehicles.

Parking of commercial vehicles on residential sites has become a significant issue and the cause for much litigation.

Similarly leases restrict obstruction of the common areas and restrict parking on any area other than allocated parking areas. Yet residents fail to park considerately often blocking allocated parking bays or access areas breaching their lease provisions.

It should be remembered that non observance of the lease provisions in relation to parking is a breach for which the leaseholders can face action for breach of lease and indeed forfeiture in extreme cases. Such actions can be brought on behalf of leaseholders by the landlord and/or management company in control of the development.

As developers build garages impossible to house much more than a smart car and allocate inadequate parking spaces for the number of occupants PARKING becomes a hot (and heated) topic.

Often in developments with shared car parks, there is contention for parking spaces where these are not specifically allocated in the leases and indeed often despite parking spaces being allocated, and this has led some freeholders or management companies to introducing parking schemes. These can either be monitored by the residents or operated by private parking companies. They require the display of parking permits to confirming a right to park. Though in principle a good idea, it has resulted in authorised persons getting tickets where permits are forgotten. Where such schemes are operated by private parking companies fines are imposed via the private company resulting in residents finding themselves facing fines for parking in their own parking spaces. It has become popular for resident management companies (where the lease allows imposition of regulations) to pass resolutions to control parking and indeed to impose fines for unauthorised parking. Such fines will be claimed via the landlord or management company and are deemed acceptable provided they are within the bounds of general parking fines.

Thus parking issues rumble on.

If you want help with car parking issues and/or interpreting leases or indeed considering action for breach of lease terms please contact our specialists in Brethertons Residential Leasehold Team 01295 270999 or visit our website www.brethertons.co.uk.

 

Reviewed: October 2019