Can you acquire an easement to park by prescription?

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The courts have held that a right to park on land is capable of being an easement provided it meets the requirements for easements by prescription.

Unlike most other types of easements such as a right of way an easement to park will to a degree effectively prevent the owner of the servient land (the land subject to the easement) from using his/her own land while the easement is being exercised by the parking of a vehicle on the land.

While to a certain degree all easements take a benefit from the rights of the owner of the servient land this aspect has troubled courts as the parking of a vehicle would appear to grant the dominant land exclusive use while the easement is being exercised.

It is for this reason that when looking at a claim for an easement to park the courts will have regard to the degree to which the owner of the land is affected so that its exercise does not leave the servient owner without any reasonable use of his land.

The court held in the case of Batchelor v Marlow [2001] that an easement cannot be created if the rights of the servient owner are usurped. The court stated that if the easement to park would leave the servient owner: “without any reasonable use of his land whether for parking or anything else it could not be an easement”. This has generally been the test subsequently applied when considering whether an easement to park exists.

This is a complex area of the law and each case will turn on its own facts. Should you have a query regarding a possible claim for derogation from grant and wish to discuss the same please contact Joseph Quinn on 01392 248858

 

This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

 

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