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Ash
Ash, Solicitor
Category: Law
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Experience:  Solicitor with 5+ years experience
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Can a person have Prescriptive Rights to park their car in

Customer Question

Can a person have Prescriptive Rights to park their car in a private car park owned by adjacent shop premises?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

An easement is a right over the land of another (the servient land), which has certain limiting characteristics:

Alex Watts :

1) It is a right which is appurtenant to other land of the proprietor of the easement (called the dominant land), which it must accommodate. Hence an easement cannot exist on its own, it must benefit land.

Alex Watts :

2) It is a proprietary right (not a personal right) such that it binds successors in title of the servient land and passes to purchasers of the dominant land

Alex Watts :

3) An easement is a right of some use of the servient land.

Alex Watts :

4) It is not such a right as entitles the owner of the easement to the exclusive use of the servient land.

Alex Watts :

In Copeland v Greenhalf the party claiming an easement asserted that for 50 years he and his father before him had, with the knowledge of the owner. Upjohn J rejected the claim to a prescriptive right to store, deposit and repair

vehicles on the side of the road.

Alex Watts :

In Hair v Gillman there was a lease of a school building. An informal permission was granted to the tenant of the school building to park on a forecourt capable of taking two or three vehicles. The Trial Judge found that the informal permission to park a car on the forecourt capable of taking two or three other cars was capable of being an easement.

Alex Watts :

In Moncrieff v Jamieson the House of Lords (Scotland) held that a right to park can be an easement, so long as the servient owner remains in possession of his land.

Alex Watts :

In Virdi v Chana an easement right was established by prescription to park in an area only capable of accommodating part of one car parking space

Alex Watts :

The Law Commission in ‘Making Land Work: Easements, Covenants and Profits a Prender’ proposes, for easements created after the proposals are adopted, the abolition of the ouster principle and instead a requirement that an easement must not grant exclusive possession. This in effect is the test proposed by Lord Scott in the Moncrieff case. An easement that stops short of granting exclusive possession, even if it deprives the owner of all reasonable use of it, would be valid.

Alex Watts :

So yes, a car parking space can be an easement.

Alex Watts :

For more information please see:

Alex Watts :

http://www.stjohnschambers.co.uk/wp-content/uploads/Parking-as-an-easement-or-as-a-basis-for-adverse-possession.pdf

Alex Watts :

http://www.inhouselawyer.co.uk/index.php/real-estate/10384-parking-rights-here-to-stay-consent-might-be-the-surprising-answer-

Alex Watts :

http://www.shoosmiths.co.uk/client-resources/legal-updates/Claiming-a-right-of-way-by-prescription-6146.aspx

Alex Watts :

Can I clarify anything for you about this today please?

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.


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