The Court of Appeal provides a useful reminder on the law of easements and some helpful discussion on the interpretation of a reservation of rights and carve-out clause in relation to the right to park for the residents of a mansion block.
The Court of Appeal handed down judgment in the case of Duchess of Bedford House RTM Co Ltd and Others v Campden Hill Gate [2023] EWCA Civ in which they considered the interpretation of a carve out clause in a lease and the transfer of an easement to park for residents of Duchess of Bedford House in Holland Park ("the Property") on an adjacent private road ("the Private Road").
The Appellants were underlessees of flats at the Property. They appealed against a High Court judgment that found they did not have the right to park on the Private Road. The Respondent was the head lessee of the neighbouring block of flats and the Private Road pursuant to a 1969 headlease.
The freeholder of the whole estate, by the 1969 headlease, had reserved to itself ''easements quasi-easements and rights belonging to or enjoyed by any adjoining neighbouring premises'' ("the Reservation Clause"). In 1969 it was settled practice for the residents to regularly park on the Private Road.
In 1974 the freeholder granted a headlease of the Property. The lease granted an express right of way over the Private Road but excluded ''liberties privileges easements rights or advantages…over land forming part of the freeholder's estate…except those now subsisting or which might restrict or prejudicially affect…future rebuilding, alteration or development or redevelopment'' ("the Carve-Out Clause").
The High Court had referred to this clause, as "inelegantly expressed and confusingly, takes with one hand and, gives with the other" which is about as strong a judicial indictment of drafting as you are likely to see.
It was common ground that if the right to park was granted in the 1974 headlease then it had also been passed down to the individual flat owners on the grant of each underlease.
The Court of Appeal held that the residents of the Property were entitled to park on the Private Road as the Carve-Out Clause only operated to exclude the creation of new rights or any rights that would prejudice redevelopment. The right to park on the Private Road was found to be ''subsisting'' in 1974 and there was no evidence that this right restricted or prejudiced any future development.
The Court of Appeal also found that the Reservation Clause was wide enough to create a communal right for all of the residents of the Property and therefore it was not necessary to evidence that each resident had exercised this right. The settled practice of the residents therefore converted into a de facto communal right to park.
This case provides a useful reminder on the law around the transfer of easements and provides a cautionary tale on the importance of careful drafting when preparing reservations of rights and carve-out clauses in leases.
