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The debate about parking easements continues

Posted on 5th December 2013 in Legal Updates

Many cases, and even our own personal experiences, illustrate the difficulty of defining the status of rights to park on another person’s property.  As a legal right, it could be part of the property demised by a lease; an easement; or contractual licence.  In practice landowners may not question parking arrangements on a day to day basis, however issues can arise when one party comes to sell or develop the land, or wishes to vary the arrangements.  It is interesting to follow how the courts have developed the debate.

We previously discussed this issue and the key case of Kettel v Bloomfold Ltd (2012) (click here).  It is important to establish the status of a parking right to determine whether it exists as a legal easement, which is a non-exclusive right to do something on another person’s land, or whether it in fact amounts to exclusive possession of the land by the parker and therefore excludes the landowner.  Whilst we will not consider them here, for a right to exist as a legal easement there are a number of specific criteria that must be met.

As discussed in our earlier article referred to above, the Kettel case followed on from two key cases in which the courts differed in opinion: Batchelor v Marlow (2001) and Moncrieff v Jamieson (2007).  The courts focused on the one hand on the extent of the use of the parking right by the parker, and on the other the amount of possession and control the landowner actually retained over the land in question.

Kettel had helped to address the tension caused by those two cases, and went on to highlight the importance of the clear drafting of documents.  In Kettel this was a lease, but the principle will apply to any document.

The status of rights such as parking often only comes into question when the parties wish to do something different, for example to develop the land, re-allocate the space, or the land changes hands.  It is important for the parties to ensure they are clear as to the nature of the right, and the extent of their rights and obligations, at the outset and not only when an issue arises.  By that point the relationship between the parties may have deteriorated and the matter become fraught and more difficult to resolve between them.

The recently reported decision in European Urban St Pancras 2 Ltd v Glyn (2013) has again re-ignited the discussion.  In that case another twist was added, as the parking right claimed was one that had been acquired by prescription (i.e. use over a long period of time).  Given the time that had elapsed, and the fact that the parking right had not been expressly granted, establishing the nature of that right was difficult.  The land had changed hands numerous times and relationships between the parties had broken down.

The court considered the tests from Batchelor and Moncrieff – but went a step further and decided that both applied.  Whilst the parker was using the parking space, it did appear as though the landowner was effectively excluded for long periods of time.  However, the landowner could have used that land at the same time for other purposes – they could walk over it, build over or under it or put up signage – but simply chose not to.  The landowner retained possession of the land and ultimate control of it.  This meant that the parking right was a legal easement, and did not amount to exclusive possession by the parker – they only had a right to use the land in common with the landowner.

The courts do appear to be taking a more consistent approach on parking easements, however the law itself remains uncertain and it is a very complicated area.  Bearing in mind that the courts will look at the circumstances in any given case, perhaps the most important point for parties to bear in mind is that the status of any rights (whether for parking, access or something else) are made clear, and that any arrangements are expressly agreed and documented.

For more information please contact Rebecca Freeman on 01789 206924 or by email.

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