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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I enquire what evidence there is to support the neighbours claim that he has been parking there for 30 years please?
From what you say the sellers claimed that the courtyard was only used for access? Was it not obvious that the neighbour parked on the courtyard when you inspected the property on viewing?
The previous owner who lived at the house for approximately 85 years supports the neighbour is the evidence. When we went to solicitors he wrote that the neighbour had used the courtyard to park without his permission or agreement. This contradicts what he said at an early viewing prior to purchase and also contradicts what he stated in his sellers questionnaire when he responded no the question of whether any neighbour had used the area over the last 20 years with or without his permission.
It wasn't evident the court yard was being for anything other than access; we had approximately 3 or 4 viewings and only on one was a car in the yard and that was my reason for asking about how it is used.
Thanks. It is possible for the neighbour to claim a legal right to park if he can show that he has enjoyed the right to park there without the landowners permission for a continuous period of 20 years or more by virtue of the Prescription Act. The burden of proof is upon the neighbour claiming the right to adduce evidence that demonstrates on the balance of probability that he has done so.
The sellers position is precarious based on what you say; he appear to have confirmed that no such rights existed over the courtyard when that appears that it may not be the case and further from what you say he now supports his neighbours claim. This would put him in breach of contract for misrepresentation as he cannot possibly claim he did not know about the parking in the circumstances.
Accordingly you or your solicitor may consider writing to the seller referring him to the disclosures he made in the sellers pack and asking him to clarify the position formally for the record reminding him that if the position is different to that disclosed, he is in breach of contract and reserving your right to claim damages for any loss in value and costs as a result of the misrepresentation.
In the meantime, you may wish to consider asking the neightbour to cease and desist parking there if that is your wish or alternatively agreeing a licence to allow him to continue. If the neighbour disputes your right to ask him to do one of the above he will have to produce evidence in support of his claim.
He can apply to register a prescriptive right if he has sufficient evidence which you can dispute in a property tribunal if you do not believe it shows on the balance of probability that he has used the space for 20 years. At the same time you can consider a breach of contract claim against the seller if his disclosures turn out to be untrue for any loss including loss of value you may suffer.
Is there anything above I can clarify for you?
Can the neighbour claim prescriptive rights if the covenant states that as the landowner I am responsible for paying the maintenance of his area immediately in front of his garage. In other words can he claim ownership whilst I remain responsible for upkeep costs? Also would not a new convenant have to be drawn up which would require my signature?
Unfortunately he could (subject of course that the burden of proof is upon him to adduce evidence to support any claim). However the above provisions would not in themselves hamper his claim
A right can be claimed by prescription without a new easement or covenant being prepared. The right is claimed by statute on satisfactory evidence of long user for 20 years and is capable of unilateral registration if the evidence is sufficient. As above it is though for the neighbour to prove not for you to disprove his right.
So if he was successful I would be financially responsible for what would then be land owned by him?
He wouldn't own the land. If successful he would just have a right to park there. The land would still be yours but of course it is not much use to you if he has a right to park there as you can't do anything with it.
Is there anything else I can help you with?
No, thank you for your help
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