Defective lease – missing parking space?

Hi Alan,

This is a fairly well-recognised category of issue, and you are right that it centres on a derogation from grant and a potentially defective lease. Where a demise includes a parking space (whether specifically numbered or shown on a lease plan), the freeholder is obliged to make that space available exactly as granted. If the space shown on the lease plan simply no longer exists due to later reconfiguration, that is a legal problem for the freeholder, not for you.

A few points to clarify your position:

1. Your lease is the governing document

If the lease plan clearly shows a space demised to you (even without a number, provided it is identifiable by the plan), then the freeholder must honour that grant. The fact the space has physically disappeared or been reconfigured later does not extinguish your right.

2. This is very likely a “derogation from grant”

A landlord cannot grant you exclusive use of a specific area and then later take it away, obstruct it, or allow it to cease to exist. Doing so is a breach of covenant and gives rise to:

A right to seek specific performance (i.e. requiring the landlord to reinstate or re-allocate a space), and

A claim for damages if the loss is permanent or causes financial loss (PCNs, diminished letting value, etc.).

3. The lease is not defective in the sense of being void

More commonly, the building layout is defective, not the lease.
Your legal entitlement stands.
The freeholder must now provide an equivalent demised space or remedy the breach.

4. The managing agent’s admission actually strengthens your position

Their acknowledgement that the space “does not exist” is not a defence.
It is an admission of breach.

5. FTT is an available route — but usually not the first one

The First-tier Tribunal (Property Chamber) can determine:

the meaning and effect of the lease provisions,

whether the landlord is in breach, and

what the lease actually entitles you to.

However, before going to the FTT, most leaseholders:

Raise a formal complaint with the freeholder/agent;

Request reinstatement or allocation of an equivalent space;

Ask for cancellation of all PCNs attributable to their error;

Invite the freeholder to propose remedial steps within 28 days.

If the freeholder refuses, the FTT can indeed determine the matter.
You would not be the first to take this route — it happens more than you might think in new-build developments.

6. Remedies you can seek

You would usually ask for:

A determination that the demise includes a parking space as shown on the lease plan;

A determination that the freeholder is in breach by not providing it;

An order that the freeholder must allocate a usable substitute space;
or

Compensation for loss of amenity and costs incurred (PCNs, tenant inconvenience, reduced rental value).

If the space cannot be reinstated, the freeholder may ultimately have to pay you compensation for permanent loss of a demised facility. That can run into several thousands of pounds.

7. Step-by-step next actions

If you want to resolve this quickly:

Write to the freeholder/agent quoting the lease plan and demanding rectification.

State that continued non-performance constitutes a derogation from grant.

Request cancellation of PCNs and confirmation of a new allocated space.

Give them 14 or 21 days to respond.

If unresolved, apply to the FTT for a determination under s.27A Landlord and Tenant Act 1985 and/or seek a declaration of breach.

You’re in a strong position and the freeholder will find this very difficult to defend.

Thanks Paul, this is very useful. I was aware of some of this and am currently waiting for a copy of the title plan from the LR to add to the letter I will send to the landlord in the New Year. I’m not sure that I need it but I think I should to get as much documentation together as I can up front.

The landlord is a well-know pension and insurance company and they have an asset management company handling things. Presumably I need to write to the former, cc the latter and the managing agents.

Similar situation where by MA contracted a vehicle control company which fined leaseholders whose vehicles correctly parked in their spaces included in their titles deeds of trust and underleases.

Disputed but wasn’t in receipt of the good advice on here.

Taken to Small Claims court for £9000! parking fees represented myself as LIP and filed my Superior Lease to the common area where parking spaces set and my deed of trust and my underlease with RMC M&A.

The court dismissed the Applicant (the vehicle control company)claim on grounds the MA claim to be legal occupier of the land was incorrect, the superior freeholder the MHCLG had transferred the residue of the superior lease to the land to the RMC and held £9000 parking fine was not allowable cost to service charge.

(The RMC acting on behalf of the Lessor and as separate covenant acts on behalf of the Lessee , nor LH in their role as shareholders/members had not brought the claim).