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A right to park?

View profile for Andrew Leakey
View profile for Joanne Ellis
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Is it a problem if a neighbour regularly parks on a part of your land? You may not use that particular section of land and have never objected to it. You may think that because it is your land you can ask them to move and reclaim your space when you need it. This is not always the case and what starts off as an informal agreement may actually amount to a legal right.

These rights are known as easements and a right to park can be established if certain criteria are satisfied. Your neighbour may be able to establish a right to park if they can show they benefit from the land. Crucially, however, an easement cannot exist if it deprives you, the landowner, of the exclusive right to use your land. Even if your title deeds do not provide for a legal easement, your neighbour may be able to acquire a right by establishing long use. The courts have battled with this contentious area and the three cases considered below are important to the landowner.

In the case of Batchelor v Marlow, the defendant ran a garage and claimed a prescriptive right to park by parking six cars of the verge of the claimant’s roadway from Monday to Friday between 8.30am and 6pm. In this case, the Court concluded that no right to park existed. The space in question only had room for six cars and that to allow the easement would prevent the land owner from enjoying the use of his land.

However, in the later decision of Montcrieff v Jamieson the House of Lords (now the Supreme Court) rejected that approach. They concluded that a right to park can be established as an easement provided that the landowner is in possession and control of his land. This means that it is much easier for a neighbour to establish a right to park.

These two approaches sparked further claims to establish exactly what is needed to gain a right to park. In the recent decision of Kettle v Bloomfield, the Court considered that although the land owner was unable to enjoy his land as a result of the defendants parking practice, other rights meant he retained possession and control of his land. Such rights included passing the land on foot and therefore did not leave the landowner without any reasonable use. This decision is important because the Court bypassed using the approach in Batchelor v Marlow and allowed a right to park simply because the landowner had possession and control of the land.

This leaves the landowner in a difficult position. The current trend in the Courts is to grant a right to park to neighbours even where the landowner has control over his land. A landowner should be aware that a neighbour may be able to establish a right to park and therefore have a legal right to use the land. If you are a landowner and are unsure about the ownership of your land, contact our dispute resolution or neighbour disputes team for advice.

By Danielle Watts, graduate paralegal in the dispute resolution team

 

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