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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10635
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I seek advice/opinion on asserting the continued right of my

Resolved Question:

I seek advice/opinion on asserting the continued right of my neighbours and I to park our cars on certain areas of land where there are our lockup garages, and which are adjacent to our blocks of flats.
The freeholder of the land on which our lockup garages are located, has built 3 new houses on an area formerly occupied by a warehouse and 12 of the lockup garages. He has sought to designate newly marked parking bays as being for the exclusive use of the houses, now that the building work is completed.
I believe that having parked cars on these pieces of land for well over 20 years, there are grounds for us to be able to assert a right to continue to park on this area, as an easement has effectively been enjoyed for that long time.
I understand that there is also the doctrine of "lost modern grant which provides that where an easement has been enjoyed for at least 20 years it is presumed that an easement has been granted and is merely lost. It cannot be removed by interruption. Simply showing continued use over 20 years is sufficient to acquire the right. A change of freeholder does not affect the right once it has been acquired."
There are 2 areas involved, one where up to 7 cars could have parked, another where 5 cars could park. The freeholder has sought to revise these areas and has marked out just 3 parking bays in each area, stating that the area where 7 cars formerly parked are for the exclusive use of the new houses, and the area where 5 cars formerly parked are 'shared' between the houses and our flats, at his discretion.
How do we proceed to assert our right to park by prescriptive easement?
Would each flat owner need to write to the freeholder of the land in question, stating that residents of the flats have parked on these areas of land for >20 years, and are therefore entitled to continue to do so?
Many thanks
Gerry Dennigan
Chair - Roehampton Close Residents Association
5 Roehampton Close
London SW15 5LU
07788 446415 ***@******.***
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.

Hi, thanks for your enquiry. So I can answer you fully, could you please confirm that you have parked on the land for 20 continuous years or more? Has this always been done WITHOUT the consent of the owner of the land and that it has always been without any objection? Kind Regards Al

Customer: replied 1 year ago.
In general, residents of our 48 flats have parked on this land for well over 20 years. Up to about 9-10 years ago, the land in question was part of the same freehold as our leasehold flats. The estate was divided and the freehold of the garages sold as a separate entity, mainly with the potential for development of a warehouse building into something residential. Parking by residents of the flats, most of whom are also garage leaseholders, continued over the subsequent years, without consent or objection.It is only now that the property development has been completed (3 townhouses), that the freeholder of this land is seeking to restrict us from parking on the land.
Expert:  Aston Lawyer replied 1 year ago.

Hi, thanks for your reply. For you to have acquired an easement by prescription, you must have parked on the land without any lawful right to do so, for 20 years or more. You mention that the land used to form part of your flat development- Were you and the other residents ever granted consent by the previous Freeholder to use the land for paring or did your Lease grant you any such rights? Kind Regards Al

Customer: replied 1 year ago.
The land used to form part of the same freehold as the flats, but there were, and still are separate leases for flats and garages.The garage lease, in the tenants covenants, states that the tenant is not to park or allow the parking of any motor vehicle on any part of the garage area.The lease of the flats only refers to not causing obstruction to the buildings, but also suggests that cars should not be parked on any part of the curtilage of the building except upon such parts of the circular drive (the 4 buildings are sited around a circualr lawn with perimeter road) and for such periods as the lessor may from time to time allow and subject to such regulations the Lessor may make.In reality there have never been any regulations defined, and residents, and garage leaseholders, have parked on the various 'curtilages' for decades. No consent was ever sought or granted, but I think we do not have a specific lawful right to park anywhere on any of the land around our flats or garages.
Expert:  Aston Lawyer replied 1 year ago.

Hi, thanks for your reply. Well, from what yo have told me, I feel that you do have sufficient grounds to have acquired an easement by prescription. As you may have been told, such a right is acquired automatically, if you have continuously used the land, for 20 years or more. Although this easement is an "overriding interest" (ie the owner or any Buyer of the land takes subject to the right), it is always best to register this right at the Land Registry. You should therefore consult a local Conveyancing Solicitor to assist you with the application. I hope this helps and if so, I would be grateful if you could rate my answer. Kind Regards Al.

Expert:  Aston Lawyer replied 1 year ago.

Hi,

Can I assist you any further?

Kind Regards

Al

Customer: replied 1 year ago.
Thank you, ***** ***** the delayed response. I just want to make sure I understand our current position, and the recommended further action.As we currently stand, we effectively have the right to park on these two areas of land, that used for parking by residents of our flats, and their visitors, for well over 20 years. If the current freeholder seeks to have residents move their cars off those 2 areas/zones, we should refuse to do so citing that we have acquired an easement by prescription and it is our right to continue to park there?Is it really necessary to register this interest, as he would most likely seek to block it?Is there anything he can do now to prevent us continuing to use the land to park on?Thank you very much in advance
Expert:  Aston Lawyer replied 1 year ago.

Hi, yes- you are indeed correct. I would also suggest that you apply to the Land Registry so a formal easement is noted on the Freeholder's title, that this right to park exists. I hope this clarifies matters. Kind Regards Al

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