Parking space within freehold not demised in Leases

[peejayem]

This concerns a semi-detached house that has been converted into two maisonettes. One freehold over the building, side driveway and front and rear gardens. In the rear garden is all paved to extend the driveway to give access to two garages and one parking space. Each garage is demised to one of the maisonettes. BUT there is no demise or other mention of the parking space in in the test of either the freehold or Leases, save that it is identified with an arrow and description "parking space" on the plan attached to both the Leases.

THE FREEHOLDER HAS BEEN ABSENT FOR OVER 32 years - probably deceased.

A neighbour from an adjacent but separate freehold has apparently been using the parking space for a very long time (30 years claimed) and claims they were given verbal permission to use by the freeholder (even though it seems from papers that they bought their Lease after our freeholder became absent). We want to use the parking space within our own freehold even though it is not specifically demised to either of our maisonettes.

Questions:
a) when the freeholder is absent, do I and the other Leaseholder assume responsibilities AND AUTHORITIES of the absent freeholder?
b) can we lay claim to use of the parking space within our freehold (but not demised to use or any other)?;
c) can the neighbour claim any right to any continuing use of the parking space? (eg worried a bit by the Prescription Act 1832 (although I think I understand correctly that a prescribed easement can never create exclusivity for the dominant land);
d) what action can we as the Leaseholders (with(out) an absentee landlord) take to maintain or create our right to use the parking space?

[Anna1985]

Why don't instruct a solicitor and buy a freehold?

[Lawcruncher]

a) when the freeholder is absent, do I and the other Leaseholder assume responsibilities AND AUTHORITIES of the absent freeholder?

No.

b) can we lay claim to use of the parking space within our freehold (but not demised to use or any other)?;

There is no legal basis on which you can claim the space.

c) can the neighbour claim any right to any continuing use of the parking space? (eg worried a bit by the Prescription Act 1832 (although I think I understand correctly that a prescribed easement can never create exclusivity for the dominant land);

It would seem not as the neighbour asserts that he had consent. However, there is a possible argument that the consent has lapsed, particularly if there has been a change of freeholder. Whether, and in what circumstances, a right to park can be an easement is a question which has not yet been fully decided.

d) what action can we as the Leaseholders (with(out) an absentee landlord) take to maintain or create our right to use the parking space?

None, as you have no legal interest in the space. If you have no right to the land you cannot argue that a person in possession has no right. A person in possession has a good title against everyone except the owner.

The only way forward is to acquire the freehold if the requirements for collective enfranchisement are met. This can be done if the landlord cannot be found. Acquiring the freehold will not guarantee that you can recover use of he space, but there is no way of doing so if you do not. Enfranchisement is probably a good idea in any event if you have an absentee landlord.

[Gordon999]

Both leaseholders together can set up a RTM company ( for your address ) to administer a service charge account under the lease and authorise the use of parking spaces by leaseholders. A dormant RTM company will cost about £25 p.a ( annual fee ) to the leaseholders. Details for setting up RTM ( and other guides ) can be viewed at www.lease-advice.org

Best way forward is to buy the freehold title for your address. Check the name of freeholder at Land Registry Online website for your address ( costs £3 by credit card to download the info).

[peejayem]

a) when the freeholder is absent, do I and the other Leaseholder assume responsibilities AND AUTHORITIES of the absent freeholder?

No.

b) can we lay claim to use of the parking space within our freehold (but not demised to use or any other)?;

There is no legal basis on which you can claim the space.

c) can the neighbour claim any right to any continuing use of the parking space? (eg worried a bit by the Prescription Act 1832 (although I think I understand correctly that a prescribed easement can never create exclusivity for the dominant land);

It would seem not as the neighbour asserts that he had consent. However, there is a possible argument that the consent has lapsed, particularly if there has been a change of freeholder. Whether, and in what circumstances, a right to park can be an easement is a question which has not yet been fully decided.

d) what action can we as the Leaseholders (with(out) an absentee landlord) take to maintain or create our right to use the parking space?

None, as you have no legal interest in the space. If you have no right to the land you cannot argue that a person in possession has no right. A person in possession has a good title against everyone except the owner.

The only way forward is to acquire the freehold if the requirements for collective enfranchisement are met. This can be done if the landlord cannot be found. Acquiring the freehold will not guarantee that you can recover use of he space, but there is no way of doing so if you do not. Enfranchisement is probably a good idea in any event if you have an absentee landlord.

Thanks very much for the reply.

[peejayem]

Both leaseholders together can set up a RTM company ( for your address ) to administer a service charge account under the lease and authorise the use of parking spaces by leaseholders. A dormant RTM company will cost about £25 p.a ( annual fee ) to the leaseholders. Details for setting up RTM ( and other guides ) can be viewed at www.lease-advice.org

Best way forward is to buy the freehold title for your address. Check the name of freeholder at Land Registry Online website for your address ( costs £3 by credit card to download the info).

Thanks very much for your reply. I have all the LR documents and also a Statutory Statements from 2001by a previous Lease holder that the Freeholder was absent. Any idea in an absentee landlord case, how one "buys" a freehold from an absent landlord?

[Lawcruncher]

Any idea in an absentee landlord case, how one "buys" a freehold from an absent landlord?

https://www.legislation.gov.uk/ukpga/1993/28/section/26