The Upper Tribunal has found that the First Tier Tribunal erred in finding that a clause prohibiting vehicular access to a tenant’s garage was a defect in need of modification.

The tenant owned the lease of a first-floor flat which included a garage at the end of the driveway. The lease granted the tenant access to the garage on foot only. The tenant applied for a new long lease but with vehicular access.

Usually, a new long lease is granted on the same terms as the existing lease, but a new lease can be modified where necessary to remedy a defect. The First Tier Tribunal found that access to the garage on foot only was restrictive and was a defect as there was no point in having a garage if a vehicle could not be parked in it. It therefore modified the lease to grant vehicular access.

The landlord applied for permission to appeal on the basis that vehicular access was not included in the original lease because of physical constraints in the property’s layout. The Upper Tribunal heard the appeal and decided that the First Tier Tribunal had erred in finding that the clause prohibiting vehicular access to the tenant’s garage was a defect in need of modification. The clause contained no ambiguity, inconsistency or other difficulty of interpretation and the restricted access was understandable in light of the physical constraints of the property highlighted by the landlord. In addition, the garage had capacity to be used for other storage and not just to store a vehicle.

It was decided, therefore, that the new lease had to be granted on the same terms as the existing lease.

This judgment is interesting as, although one may assume that vehicular access to a garage is ancillary to occupation of a property, the terms of the lease may not necessarily permit this. It is important to understand the extent of the rights granted in a lease and whether they are suitable for the intended use of the property.

Our experienced Commercial Property lawyers are able to provide advice on all aspects of property related issues. If you would like advice you can contact us by calling 0161 941 4000 or by emailing lawyers@myerson.co.uk.