Is your car park secure?

Historically, a right to use a car park space granted ancillary to a right of occupation under a lease has been regarded as an easement in the same way that a right of way might be granted ancillary to a new lease. Such rights, by their very nature, would not create any rights of security of tenure under the Landlord & Tenant Act 1954.

However, in the recent case of Pointon York Group Plc v Poulton, the Court of Appeal has decided that a car park space can indeed attract security of tenure and therefore be subject to a right of renewal.

The court held that a car parking space could constitute "premises" under the Act and was capable of being "occupied" for the purposes of it. On a correct interpretation of the lease in the case, the judge held that the tenant had a right to occupy the car parking spaces during normal business hours to the exclusion of the landlord and other persons deriving title under it, unless the landlord chose to substitute equivalent spaces. The right was, in effect, a right to occupy the parking spaces for discontinuous periods of part of a day. It did not matter that the property was to be occupied for discontinuous periods - following an earlier case, the judge decided that "occupation" was a question of fact and degree and would depend upon the circumstances of each individual case. The court also said that it was not necessary for the tenant to be physically present in the premises in order to occupy them, as long as it was using them in some way incidental to the ordinary course of business life, the premises were not occupied by any other business occupier and they were not used for any non-business purpose.

What does this mean for you?

The practical consequences of this case are clear. Any existing licence or right to use a car parking space needs to be reviewed to see whether it satisfies the criteria in the Pointon York Group case. If it does, and that right is not granted pursuant to a lease which is excluded from the Landlord & Tenant Act 1954, there is a good chance that the occupier will have a right to continue to use the car park space after any licence has expired and, unless the landlord has grounds to oppose an application for renewal, that licensee will have the right to seek a new licence/lease of the car park space in due course.

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The content of this update is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide a comprehensive statement of the law. It does not constitute legal advice and does not provide a substitute for it.