Dear Property Doctors,
We have used an area which we don’t own for the last 21 years to park our cars. It has been used as a car park for over 40 years, and we can obtain sworn statements to this fact from previous residents. Will I be successful in asking the Land Registry to show we have that right?
AR, by email
This is very much a “hot topic”. There have been a number of cases about whether a right to park can be an easement. This is a right that is enjoyed over land owned by someone else.
The problem is that for an easement to exist, it cannot exclude the owner of the land from the land in its entirety. A typical easement is a right of way, ie one person (“the servient owner”) owns the land, and his neighbour (“the dominant owner”) can walk or drive over it. Clearly, when the land is not being walked or driven on by the dominant owner, the servient owner has the full benefit.
With parking, you can see the case is different. If someone could park on someone else’s land, then the owner of the land could effectively do very little with it even when the car is not actually parked on it. This is why there is doubt about whether a parking right can be an easement at all. Having said that, a right to park can probably exist as an easement. Certainly it is very common for a buyer of the flat to be given the right to park in a designated space in the parking area of the block
If that is the case, then it can be acquired by “prescription”, ie at least 20 years’ long use. I think it probably would be worthwhile submitting an application to the Land Registry supported with the statements you mention. You do not say who actually owns the land on which you have been parking. If you make an application to the Land Registry, then it is more than likely that the owner will object, in which case you will have to decide whether to withdraw your application or go to a specialist tribunal or the court. Certainly, I would strongly advise you to seek advice from a solicitor as to your position on this before proceeding further.
David Fleming is the head of property litigation at William Heath & Co solicitors (williamheath.co.uk)
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