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4th April 2019

Garage access by foot only may not be a lease defect

By Sarah Finch

In the recent case of Park V Morgan & Anor [2019] UKUT 20 (LC) the Upper Tribunal has held the fact that a lease which only granted access to a garage by foot was not a defect in the lease.  The Tribunal made specific reference to the layout of the property in reaching its decision.

Mr Park is the freehold owner of a two-flat property.  Mr Park had granted a long lease of the first floor flat, the leaseholders of which were Mr and Mrs Morgan as at the date of the application.  The property included two garages adjacent to each other at the end of the driveway – one for each flat.  The Morgans’ lease only granted them access to their garage on foot.  They applied for a new long lease, this time with vehicular access to the garage included.

Section 57(1) of the Leasehold Reform, Housing and Urban Development Act 193 states that a new long lease will be granted under the same terms as the existing lease.  However, section 57(6) (a) provides that a new lease can be modified where it is necessary in order to remedy a defect.

The First Tier Tribunal (FTT) deemed that the restricted access to the garage by car was a defect.  The crux of the FTT’s reasoning was that there is no logic in having a garage included in a lease if a vehicle cannot use it.  The lease was therefore modified to allow access to vehicles.

Mr Park applied to the FTT to appeal on the basis that his original argument had not been addressed.  He had deliberately left vehicular access out of the original lease because the proximity of the garages to the back wall of the house makes access to Mr Park’s garage by vehicle nearly impossible.  The garage included in Mr and Mrs Morgan’s lease could be easily accessed by the driveway, part of Mr Park’s freehold title, by vehicle.  Mr Park argued that the poor design of the garages made it illogical to include mutual vehicular accessibility in the terms of the lease.  Mr Park needed the use of his own driveway to park in as he cannot access his own garage by vehicle.  The parked car would thusly block the leaseholder’s garage, making access by car impossible for both parties.  For this reason Mr Park omitted vehicular access to each garage in the lease.  The FTT refused permission to appeal when registered by Mr Park.

On appeal the Upper Tribunal (UT) looked into the leading case of Gordon v Church Commissioners for England (2007) LRA/110/2006 in order to determine whether or not access to the garage by foot only could be considered a “defect” that could be modified in the lease under Section 57(6) (a).  Gordon states that a defect is:

“A shortcoming below and objectively measured satisfactory standard.  It is not sufficient for a provision to be a defect only when viewed from the standpoint of one or another party.”

In other words, for it to be a defect, it must actually be necessary to correct it, not merely more convenient for one party.

The UT then looked to the wording of the original lease itself and found that neither the wording, nor the intention of the lease were ambiguous.  The lease allowed for the leaseholder to pass on foot at all times and for all reasonable uses of the enjoyment of the premises, including the garage.  The UT considered this surprising until further consideration was given to the physical constraints of the property and the practical reasons for the lease to only allow access on foot.  In order to avoid obstruction with more than one vehicle, or restraining a right of access by vehicle by blocking tenants in or out were it granted, the original lease only allowed access by foot.

The UT rejected that there was a defect because even though a garage is normally considered a common place to park and store vehicles, it is not a garage’s only purpose.  That, in conjunction with the physical limitations of the property, led the UT to determine that a new lease was to be granted on the same terms as the original lease.

Commentary

This case is interesting because it acknowledges that access by foot only, circumstances depending, is not necessarily a lease defect that requires modification.  While garages are often used for cars, this case also acknowledges that their use as a place of storage only can also be considered a valid use.  In addition, practitioners and investors will note that the Upper Tribunal has followed the previous line of case law which has interpreted “defect” very strictly.

Garage access by foot only may not be a lease defect

Have a question? Contact Sarah

Have a question? Contact Sarah

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