Q: We need some advice on car parking at our development as we are about to appoint a car park management company to manage our car park.
We have an issue with one tenant/lessee who is sub-letting their car parking space to a person who does not live at the development. Obviously with 16 properties on the development and only 19 car parking spaces this is not something we can allow. Also, once one person starts it can easily open a can of worms that we do not want.
I have told our managing agents to inform the tenant/lessee that sub-letting of car parking spaces is not allowed. But they are not being much help and are reluctant to inform the tenant/lessee that they are not allowed to sublet their car parking space, and are saying the lease is silent on the issue.
I am of the view that as directors of the RMC we are allowed to set this rule. Also, I am sure that sub-letting of car parking spaces is not allowed on developments such as ours.
FPRA Director Shaun O’Sullivan replies:
Despite the assertion of your managing agent, the lease is not actually silent on sub-letting. One clause states that the lessee is prohibited from underletting or assigning the lease within the last seven years of the term without the previous consent of the lessor. Such a clause is quite usual in residential leases but does imply that sub-letting is permissible at other times. Additionally, another clause of the lease certainly contemplates sub-letting, albeit any sub-letting has to be in respect of the whole of the demised premises and not just part of it. I suspect what your agent is saying is that, other than that defined in the clause, the lease is silent on any specific conditions related to sub-letting.
However I believe the determination on sub-letting is largely academic in the case you cite as both clauses relate to the lessee’s authority, granted under the terms of the lease, to sub-let that which has been demised – ie the demised premises. On the assumption that the lease on file is similar to that granted to the lessee in question and on the assumption that no variation has been enacted since it was granted, then that which comprises the demised premises, as defined in the schedule, appears not to include any allocated parking space. Thus, the parking spaces form part of that which has been retained by the lessor, albeit the schedule provides a right, in common with all others, to park a domestic private motor vehicle in any free parking space in the common parts. Thus, it would appear that the lessee in question is letting, and presumably acquiring income from, part of the estate which he doesn’t actually own!
I might suggest, based on my observations and interpretation of the lease, that you discuss further with your managing agent as a matter of some urgency.
[Submitted June 2019]