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Property Coursework Essay

1779 words - 8 pages

Leading Case: Batchelor v. Marlow

Parking rights have existed by means of lease or licence for quite a long period of time. On the other hand, until quite recently, whether a right to park was recognisable in the form of an easement had been much more ambiguous. In this area of the law Batchelor v. Marlow [2003] is the leading case; it has been effectively used to clarify the subject. The case is known best for approving the test devised by Judge Paul Baker QC in the High Court case of London and Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd [1993]. This test acknowledged that the right to park could exist an easement provided that it would not ‘leave the servient without any reasonable use of his land’. Having been approved in the Court of Appeal, the test remains binding on inferior courts despite certain criticisms concerning its efficacy in deciding whether an easement of parking should or should not be granted.

Ancillary Case: Kettel v. Bloomfold Ltd

Owing to Batchelor’s importance in the granting of easements, the test has been applied in a variety of recent cases. Kettel v. Bloomfold Ltd [2012] is a case in which the test played a major role in granting an easement over parking spaces designated for use by the lessees of flats owned by the defendant. HH Judge David Cooke found upon application of the test that such a right would not ‘leave the servient owner without reasonable use of his land’3; meaning that a right to park could indeed be established as an easement.
In terms of similarity between the two cases there are two clear points of correspondence. Most notably, during both proceedings it was accepted the fact that there are circumstances under which the right to park may exist as an easement. Kettel is a prime example of the principal role that Batchelor plays in ensuring that the law is clear on whether a right park may or may not exist as an easement. The second, perhaps less significant similarity is that both cases considered whether the right to park would deprive a freeholder of any reasonable use of their land.
The cases also have noteworthy differences; the subject matter of Kettel was whether the claimant’s parking rights had been demised to them in their lease. This was a greater exploration into the differences between proprietary and personal rights wthan was seen in Batchelor. It was found, however, that the freeholder had only granted them ‘the sole right to use the car parking space for the purpose of parking’ a vehicle rather than ‘exclusive possession’ of the space – therefore the grant did not exist as a lease. In answer to the question of whether the right to park granted to the lessees could have been a licence, which would have been revocable at will, it was clear to the court from the wording of the lease that the rights granted in the lease were proprietary, thus a licence did not exist. Furthermore, HH Judge David Cooke distinguished Kettel upon the facts. Various points were made with...

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