As the number of recent cases appearing before the courts relating to parking issues and disputes bears out, having the ability to park near your property is something of an emotional issue, and one on which people are quite prepared to litigate. Several cases over the last two or three years have considered whether or not a servitude right of parking could be said to exist, but in the recent Sheriff Court case of Holms v Ashford Estates Limited, title to the parking space in question had actually been given, and a right of access to the space granted. However, due to the creation of an additional parking space next to the pursuers' parking space which, when occupied, meant that the pursuers couldn't get their car into their own parking space, Mr and Mrs Holms were effectively prevented from using the space which they owned.

When Mr and Mrs Holms bought their flat, the title included not only the flat, but also parking space 42, which was one of three parking spaces numbered 40, 41 and 42 shown on their title plan, and also on the plan attached to a Deed of Conditions which related not only to the Holms's flat but also to the other flats in the development - a tenement building, being converted into five flatted dwellinghouses.  The parking spaces were located in a small area of ground to the rear of the tenement. Their title also included a servitude right of access over the common car parking area, forming part of that rear area, as well as access by a lane.

It transpired that around the same time, the purchaser of one of the other flats in the tenement was given title to parking space 43. That space was shown on that purchaser's title, but not on any of the other deeds, and evidence was led by the pursuers to the effect that at no time had they ever been given any indication that there was anything other than the original three spaces intended.  It was only after they moved into their flat that Mr and Mrs Holms realised that there was a parking space 43, and although they were given permission to use it for a while, after raising the matter with the developer, that arrangement did not continue, and Mr and Mrs Holms were again unable to use the space to which they had title.  Suggestions which seem to have been made to Mr and Mrs Holms that they use a "Smart Car" to be able to use the space, and which were explored in some detail by the Sheriff, were not taken up by the pursuers.

Mr and Mrs Holms based their case on the fact that the warranty in relation to the servitude right of access contained in their title from Ashford Estates, had been breached. This warranty, known as warrandice in relation to titles, is implied in all transfers of title and is in fact, invariably expressly stated in dispositions.  It amounts to a guarantee from the granter of the property that there is a good and marketable title to the property being conveyed, so that should that prove not to be the case, the purchaser is entitled to claim damages.

However the law relating to warrandice is not merely a simple guarantee. There are four separate components to the obligation of warrandice, which are:

  • that the granter has a good title to the property being transferred;
  • that there are no subordinate real rights such as rights of a heritable creditor affecting the property;
  • that there are no unusual and material real conditions (servitudes and real burdens) which are not known to the transferee; and
  • that the granter will do nothing in the future to prejudice the title of the transferee.

Warrandice applies not just to the title to property that is conveyed but also to ancillary rights like servitudes, which accompany the title.  In the Holms case, there was a problem with the servitude right of access to the parking space, since although it may have been validly granted it could not be exercised, because the pursuers needed unobstructed access over space 43 to be able to use space 42. The timing of the various deeds by which the parking spaces were conveyed was such that, by the time the title to space 42 was granted, Ashford had already granted the title to space 43. The owner of space 43 was entitled to use the space and had been doing so, and in doing so had effectively prevented Mr and Mrs Holms from using their property, the result being that they were evicted from space 42.

Eviction, in the context of warrandice, has a particular meaning that is more than just actual physical removal. The leading case in this area of the law is Clark v Lindale Homes Limited 1994 SC 210 in which there is a full discussion of the requirements for eviction in warrandice. In that case, Lord President Hope has this to say on the subject: "There must be eviction of the subject from the grantee so that the defect in his title is placed beyond doubt. But there seems to me to be no more in this point than that there is no right to indemnity until there has been a clear breach of the absolute warrandice which has caused loss to the grantee. The warrandice is breached when there is shown to be a competing title which will inevitably prevail in competition with that which has been given to the purchaser. Actual eviction, or the threat of eviction which occurs upon a challenge being made by the party with the competing title, will enable the grantee to make a claim on the warrandice. But it seems to me that neither of these is essential, if it can be demonstrated that the grantee has sustained loss against which he requires to be indemnified because there is a defect in the title which will provide a ground for actual eviction and it is unquestionable. If these requirements are satisfied it would appear that, in principle, it is open to the grantee to aver that he has suffered eviction within the meaning of the word which is relevant in this context and to claim indemnity for breach of the obligation of absolute warrandice".
 
It seems therefore from this that actual eviction is unnecessary, although in Holms the Sheriff was of the view that in the circumstances of this case there had been eviction from the outset, because if the owner of space 43 had the right to use their property including the parking space as and when they liked, this effectively prevented Mr and Mrs Holms from using their space at any time. In the words used by Lord President Hope in Clark, even if this could be said not to be actual eviction, it provided the grounds for actual eviction and it is unquestionable.

The Sheriff found in favour of Mr and Mrs Holms and awarded them payment of the sum of £15,000, the amount claimed by them as the value of the parking space.

The full text of the judgement is available on the Scottish Courts website at: http://www.scotcourts.gov.uk/opinions/a2086_04.html

Back to Search