Prescriptive Rights

[piccadilly]

These issues are rumbling on.

As previously described to this helpful and excellent forum - my neighbour continues to partially block my driveway by parking his vehicle there - even though he as adequate space on his own driveway.

I have concerns that an emergency vehicle will not be able to access my property as the larger delivery vans have not been able to get through, so I must ask my neighbour to move the car or cart the delivery goods to the top of my drive myself. The delivery drivers won’t wait as they have tight delivery schedules.

The parking doesn't happen that often - probably once for a day every two weeks.

The land outside my drive is part of my registered title, confirmed by a boundary surveyor and a solicitor - so my neighbour is parking on my land.

My neighbour is claiming that he has parked there for last 20 years and if I need access I only have to ask, and he will move the car and has even offered to give me a key so I can move the car myself. This isn’t practical especially in an emergency.

He believes that he now has prescriptive rights for an easement allowing him to continue to park.

I'm going to consult my solicitor on this before I react although he has informed me that he is a conveyancing solicitor and will have to refer the case to his firms (more expensive) dispute resolution department. I have spent nearly £2,000 so far in surveyors/legal fees on another part of my land.

Reading on the internet (I am relying on this!) in particular the case of “Green v Ashco Horticultural Ltd”: -

Where the situation was that a claim for the right to park a van failed because the nature of the relationship between the two pieces of land was that the claimant would move the van at the discretion and request of the servient owner.

So, they suggested that any sort of easement or right only existed at the discretion of the servient owner and an easement over of the piece of land wasn't created.

So ultimately this is an example of a relationship between the two pieces of land was creating a license of use rather than an easement.

The case suggests that a license has been created rather than an easement. Presumably the license can we revoked?

Any comments would be helpful before I incur more fees.

[atticus]

my old forum buddy dslippy who has recently moved here may be able to answer this.

[dslippy]

Green v Ashco [1966] 1 WLR 889 will not greatly assist. The parties there were tenant and landlord which always means that easements are on a different technical basis.
It is not a case which has been cited (used) for the last 15 years.
Do not give up however. Parking easements have always been very reluctantly accepted if at all. One characteristic of an easement is that the servient owner's use is not interrupted. The loan of a key may also suggest that the use is precario - by consent.
Always try to resolve these things by agreement. The cost of a battle is utterly disproportionate to the values involved. Get clear advice from someone who knows what they are talking about andb has seen the plans and has the facts, listen, and then try to resolve this amicably. If that fails try again.

(@Atti - I cannot reply to your pm - can you contact me on david@swarb.co.uk)

[dslippy]

Actually look for
Green v Ashco Horticulturist Ltd
[1966] 1 WLR 889, [1966] 2 All ER 233
Not sure it is of help. It has been quoted but for a specific (different) purpose. I should be able to help a little more tomorrow.

[dslippy]

A start:
F granted T a lease reserving the right to deal with all rights in the property as F wanted. T used the back court and gate for business deliveries but then F granted the freehold to the plaintiff, who in turn denied all right to use the back court or gate as T had been doing for many years. Held: T had no easement arising from section 62 of the 1925 Act. The plaintiff's use of a right of way, being always subject to the exigencies of his landlord's own business, could not have been the subject of a legal grant and that, in those circumstances, section 62 could not operate. It was not an easement as the tenant had always asked for permission before parking. <br />In considering whether an advantage was "enjoyed with" the land conveyed, one considers a reasonable period of time before the conveyance in order to see whether there was, over that period, a pattern of regular user in any particular way. Cross J said: "One ought to look at a reasonable period of time before the grant in question in order to see whether there was anything over that period which could be called a pattern of regular user in any particular way or ways".

[piccadilly]

DSLIPPY,

Thanks for your hard work - I thought that the fact they would offer to move the car or allow me to have a key meant that an easement could not be established.Clutching at straws a bit.Reading the case above I don’t really understand it but the last sentence isn’t very encouraging.

I have since installed a small potted shrub in the area they normally park and this is not popular - but at the end of the day this is my registered land and I want to discourage people from establishing rights. I will see what the solicitor says and report back.

Kind Regards,