When is a garage not for cars? The importance of clear wording and inclusion of necessary rights in a lease

By James Cottrell

Partner – Head of Commercial Property

24 April 2019

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When can you drive your car to your garage?  It depends on what your lease says.

You may think that it goes without saying that a garage has to be accessible by car, but this was not what the Upper Land Tribunal found in the recent case of Park v F Morgan and C Morgan [2019] UKUT 20 (LC).  The case highlights the court’s reticence to change retrospectively the wording of a lease and the corresponding importance of ensuring that your lease, domestic or commercial, contains all the necessary rights before you sign it.

In this lease the upper flat was granted a right of way on foot only to go over the shared driveway, despite including a garage (accessible only by the driveway) as part of the property.  A clear drafting error you might say. Not so.

On appeal Martin Rodger QC upheld the landlord’s argument that the lease had been drafted specifically to exclude the right for cars belonging to the upstairs flat to use the driveway.

The reason (perverse though it may seem) was because the ground floor property’s garage was inaccessible by car due to faulty design.  Nevertheless the freeholder successfully argued that the upper floor flat was not to have access to its garage by vehicle so that the ground floor property could park on the driveway without restricting access.

Whilst this finding may appear unfair, landlords can decide (and tenants can negotiate) what rights are included in a lease of a property.  Commercial and domestic tenants alike should ensure that the wording of their lease is carefully examined before completion to make certain that the lease allows the tenant to use the property according to its plan.

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