Prescriptive Easement Parking Case

[BlahBlahx]

Hello,

We are currently defendants in an ongoing Part 8 claim regarding the use of a shared garageway between ours and our neighbours properties.

We have been using the garageway parking between a particular time for the last 29 years, continuously, without permission, and not secretly. They moved in, in 2018. They have no vehicle access due to them changing the configuration of their back gate to a single door. We have offered to release any easement or to come up with an agreement regarding the parking. They have not tried any mediation.

Our property is a shared ownership property owning 50%, our neighbours are freeholders of there’s we are listed as leaseholders.

We have already submitted two Part 36 offers offering to release any easement without asking for any compensation however they want financial compensation which we are not willing to offer.

In their solicitors most recent communication they state that no prescriptive easement is possible as we are leaseholders and there’s a registered right of way.

However,
Practice Guidance 52: Easements claimed by prescription states;

1.2 ‘Firstly, a tenant’s use can establish an easement but it attaches to the freehold estate. This means a tenant cannot acquire an easement over other land owned by their landlord, as a landlord cannot have rights against themself, and this applies whether or not that other land also has a tenant. It also means any easement that does arise will not end with the lease.’ - I take this to mean that a prescriptive easement is possible but it attaches to the property.


and

2. ‘Easements arising by common law prescription or the doctrine of lost modern grant will be legal interests. The purchaser of unregistered burdened land is bound by legal interests. Following first registration of the burdened land most legal easements are overriding interests (section 29 and Schedule 3 of the Land Registration Act 2002) and so capable of binding successive registered proprietors of the burdened land’ - I understand this as a prescriptive easement is likely to be overriding of any original register entries.

this law is so confusing can someone help clarify?


Also for the court I have to submit Standard Disclosure by list can someone clear up for me if this has to include copies of all documents with the form or just the form with the document descriptions?

Thank you, sorry for the long post.

[BlahBlahx]

Wrongly wrote that this is a Part 8 claim, it was started as a Part 8 but is now a 7. I don’t think it makes a difference to my questions.

[dslippy]

Easements as between leaseholders are problematic.
Parking easements are problematic.
Your interpretation of #1 is problematic. It says that a leaseholder (you?) does not acquire the easement, but the associated freehold does. If you have the same freeholder on either side, no easement can arise.

[BlahBlahx]

dslippy Sorry to clarify the land has two separate proprietors. They are not our landlords.

From reading further I understand that easements by prescription are binding to the land.

[dslippy]

Where, as here, you appear to be dealing with leasehold and freehold estates, talking of the 'property' or the land is misleading. What matters is the freehold estate.
This is a complex problem. You may understand it, but it is not clear from your explanation.
There remains doubt as to whether a simple parking easement can exist, let alone be acquired by prescription.

See
https://www.tanfieldchambers.co.uk/2...e-an-easement/
for a helpful discussion.

[Ukmicky]

Not a straight forward area of the law . Parking easements through prescription are possible and have been gained but normally it requires more than a single space because you potentially could totally prevent the land owner from using their property if your car were not to move .

Lots of case law out there but with a lot of conflicting court decisions..