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Hello, I am a solicitor with 20 years experience. I will try to help you with this.
This person is asserting an easement through prescription. In order to get this they need to show at least 20 years continuous and uninterrupted use- This needn't be on a daily basis, but any gaps in use should be relatively short, and any gap of more than a year certainly has potential to cause problems
It must be the same use- eg if a right of way was used by foot only for 10 years and with vehicles only for a further 10 years, then no right would be acquired. The same type of use must be demonstrated for the full 20 year period.
I think your point about using different spots is a valid one if he is not parking in a particular spot then it is arguable that he has not acquired any rights. Also a right to park is not the same as a right to put builder's skips there or to park multiple cars.
I strongly suspect hat this person has not in fact acquired an easement. If at any time in the 20 year period anyone gave him permission or told him not to use the land then he has not acquired any right at all. I am not sure that this right (parking as opposed to a right of way) is capable of being an easement. You need to check the other owners to see if anyone objected or gave permission for the nghbour or his predecessor ti use a spot.
I will check the law on this tomorrow and get back to you.
OK thanks. I'll wait to see what you found about the relevant laws. By the way, you didn't answer my point about the transfer of accrual. He has only been living there for 13 years, but he claims that the previous owner also parked there for 8 years, so he is adding the two together to make 20 years. Is that valid? I read a small part of the relevant law that mentions 'the freeholder gaining an easement', which I would have thought refers to a specific person. Surely the 'clock' gets reset when a new freeholder takes over the property?
Addingther 2 together is legitimate. He is claiming a right that attaches to the freehold title not a personal right for himself.
I think if this person has been using different parking spots (owned by different freehold houses) then he will have difficulty demonstrating one of the fundamental needs of an easement ie: that there is an identifiable property that is subservient to his property. It will be hard to assert an easement over 5 separate freehold properties.). A right to park is capable fo forming an easement.
The law on this problem is quite difficult and I would suggest that you and your neighbours get together to meet a solicitor to discuss this. You can find a suitable lawyer by following this link and looking under property lawyer in your area http://solicitors.lawsociety.org.uk/
OK. Thanks. He certainly won't be able to prove continuous use of our property specifically, but he does park on the neighbour's part more often than not and may be able to prove continuous use of that part. This would still be a problem for me because we all share the drive, so his extra car affects all of us.
I will contact the neighbours
One final question
how does an easement become officially granted?
Currently he has just sent us a letter. But what if we now put a gate over the drive and physically stop him accessing?
To summarise. Parking rights can amount to an easement, but there must be a clearly identifiable subservient tenement (ie property that is burdened by the right ie not any one of 5 when I he feels like it), and the land must have been used by the occupant of the same neighbouring property for 20 continuous years without permission, deceit or objection.
Thanks but could you answer my last questions?
Here they are again:
What if we now put a gate over the drive and physically stop him accessing?
Could we be breaking the law? Would there be any chance of him claiming compensation for it?
Once an easement is shown to exist (which may be decided in litigation in court) the easement will then be registered at the land registry for both properties.
If you put a gate up preventing him getting access then he could go to court to assert his easement. If he could prove he had an easement the court would order you to allow him access to park. The burden of proof would be on him. He could claim compensation but it is hard to see that he would suffer significant losses or harm as a result and therefore any compnesatio owudl be likely to be low.