Block of flats - neighbour parking on our land

Block of flats - neighbour parking on our land

Postby dottiec1949 » Wed Aug 09, 2017 6:02 pm

I own and rent out a leasehold flat and we have recently taken over the Intermediate Lease within a Management Company of which 6 out of 8 owners are shareholders. The building is Grade 2 Listed and has its own small car park. The neighbours have lived next door since 2008 and have a car parking space at the side of their property which is actually on land owned by our building. I don't live in the flat and admit I had not realised that the space belonged to our property. The previous Intermediate Landlord was clearly aware of the parking as he carried out the conversion of our building into 8 flats and the construction of 8 houses to one side. This matter has now come to light due to another question being raised. We are not against the neighbours using the parking space but want to ensure the ownership of the land is protected.

1 The previous owner I believe also used the parking space (they don't seem to want to park on their own drive which raises suspicions) so they could more than likely claim 12 years plus of use.
2 Our managing agent has suggested we continue to let them use the space but put up a sign within the space saying Private Property - For the sole use of PH (our property) - and then if they ever move make sure the new owners are made aware that they are not allowed to park there.
3 We have always been aware that they park in that space so in effect I suppose they had our permission - even though I don't think any of us were aware it was our land as it was the responsibility of the now deceased Intermediate Landlord.

Do you think the sign would cover us legally if they decide to claim adverse possession or prescriptive easement (?) (they may be able to prove parking has gone on there for 20 years). Is there any other way we could protect ourselves to be certain that the area remains the property of the flats.

Any help would be much appreciated.
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Re: Block of flats - neighbour parking on our land

Postby Roblewis » Wed Aug 09, 2017 6:20 pm

Written permission to use the parking area and setting out terms such as not creating a nuisance to other parkers is always the best method of protection.
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Re: Block of flats - neighbour parking on our land

Postby MacadamB53 » Wed Aug 09, 2017 6:32 pm

Hi dottiec1949,

unless they've taken steps to deny you access - which it doesn't sound like they have - you needn't worry about AP.

which leaves acquiring an easement through prescription.

if they have used the land to park their vehicles for the last 20 years as of right (without force, without secrecy and without permission) then their property has acquired an easement.
in order to formalise this, though, they'd need to evidence that use.

not stopping them is not the same as giving your permission, so forget that idea.
putting up a sign now will not extinguish what has already been acquired.

that said, putting up a sign now will stop the clock meaning any ongoing use cannot be added onto historic use - so if they can only evidence, for example, 19 years use today they haven't acquired the easement and never will.

does that make sense?

it would need to be clear from the positioning and wording of the sign what land it is referring to...

Kind regards, Mac
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Re: Block of flats - neighbour parking on our land

Postby dottiec1949 » Wed Aug 09, 2017 8:04 pm

Thank you for responding.

Would the neighbours be able to add in the usage of the parking area by the previous owner of the house. I feel they may be able to achieve the 20 years if this is the case. If we put up the sign this may encourage them to take steps in acquiring a prescriptive easement and from what you say they may have already acquired this.

If they can't add in previous usage or are unable to provide evidence of 20 years usage would you advise putting up the sign and also do as the other poster has suggested ie ask them to sign terms of use etc.

I can see we may have left this too late.

Thanks again for any help.
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Re: Block of flats - neighbour parking on our land

Postby ukmicky » Thu Aug 10, 2017 1:36 am

You need to put up the sign and if it causes one or both of them to claim an easement then that is something you will have to deal with. You need to pay someone to do it so you can gain a receipt as evidence as to the date it went up.


One question for you are the spaces owned by each individual flat , do u have your own space.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Block of flats - neighbour parking on our land

Postby jonahinoz » Thu Aug 10, 2017 9:03 am

Hi Dottie,

I do not fully understand your leasing agreements ... I'm guessing that you have a lease on the flat, and a sub-leasing it to tenants. No matter.

You say that you are not bothered by your neighbours occupation of your land. Is that because you (or your tenant) have somewhere else to park your car, or do/does not have a car? Does your lease provide you with a allocatted parking place, and does it specify that you have no entitlement to park elsewhere? (I think UKMicky is thinking along the same lines) If so, your neighbour's lease probably has the same restrictions, which your neighbour would have been aware of when they took over the lease, sub-lease, or whatever. Would that have stopped the previous clock ticking? Would the previous occupier have given up all rights when he signed over the lease?

Does the "parking allocation" (if any) prevent anyone parking on your plot?

Now you are aware that you own the plot/lease, are you required to disclose it's occupation and any dispute that may arise?

Would you or your tenant like a second car, but is prevented by not having anywhere to park it?

What would your neighbour do if you parked on your plot, in his absence?

I have started another discussion about Easements, a few minutes ago.

John W
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Re: Block of flats - neighbour parking on our land

Postby dottiec1949 » Thu Aug 10, 2017 12:01 pm

Just to clarify the position:

Large Grade 2 listed building owned by local authority converted by developer in 1990 into eight flats. Decent size car park. Everyone has own space plus spare for visitors – not adhered to but no problems. The developer also constructed nine houses to the right of the Grade 2 and formed a cul de sac so you drive onto the cul de sac with the houses to your right – small strip of land to the left. Slightly beyond the end house (which abuts Grade 2 grassed boundary) is the parking space in question. So house 9 ends on Grade 2 eastern boundary and has its own parking space leading to its integral garage directly in front of it. The parking space in question buts up to the boundary of No 9 but is on our side. So still driving in you pass No 9 on the right, then the parking space, and then drive into the opening of our car park.

The local authority still own the Freehold and this year, after the death a couple of years ago of the IL, 6 flat owners took over the Intermediate Lease by way of a limited Management Company and we have an agent. From correspondence I have kept I feel confident that the previous owners of No 9 were given verbal permission by the IL to use an area of land to extend their garden (which practice was stopped when the property changed hands), and I am certain this agreement would have included the parking space. Does this verbal permission mean that the new owners cannot apply for adverse possession or prescriptive easement.

I am so grateful for your responses as I have no confidence in the managing agent who has rebuffed my suggestions to write to No 9 asking them to acknowledge Grade 2's ownership of the paking space.

Now you have more detail ie Local authority freeholder, 6 of the eight flatowners shareholders in new limited Management Company, position of car parking space in question, can anyone confirm the following.


1 Does the fact that the former Int Leaseholder gave the owners of No 9 verbal permission to park preclude them adverse possession and prescriptive easement.
2 If the other shareholders insist we allow No 9 to still be allowed to park in that spot and I am therefore overruled what is the best course to follow.
3 Should we send a letter to No 9 from the Management Company explaining that we have now taken over the management of our flats as the previous Intermediate Landlord died, and have noted they are parking on our land and wish them to stop the practice (worded more appropriately).
4 Would just putting up a sign saying for flat users only but still allowing them to park mean we are condoning them doing this and would then preclude any of the flat owners from parking there.
5 Any other advice please.

Many thanks to everyone.
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Re: Block of flats - neighbour parking on our land

Postby MacadamB53 » Thu Aug 10, 2017 2:54 pm

Hi dottiec1949,

if understand correctly, the disputed area lies between the opening to your car park and the edge of what you consider to be No 9's plot?

obvious question - what makes you sure the land isn't part of No 9's plot? is there anything on the ground?

Kind regards, Mac
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Re: Block of flats - neighbour parking on our land

Postby dottiec1949 » Thu Aug 10, 2017 5:21 pm

Thank you for coming back to me.

It's difficult to explain without you seeing the plans but the block of flats is a lovely geortgian property the front of which is on the road above the cul de sac. From that road you can walk down steps at the side of the Flats until you reach the car park. Inbetween the car park and the ground floor flats (mine is ground floor and entered from the higher road) are two basement flats. The title plan is very clear where the eastern boundary lies. I also sent for the title deeds/plan of No 9 and the boundaries correspond. Our boundary runs from the top road, down past the side of No 9 with only a whisper of space showing, if any, to the right of the parking spot they use (we are to the left), across to a turning space - the turning space and car parking spot look separate from our car park only because the developers decided to make a specific opening into our car park. Take that away and the turning area, and the car parking space would all just form our car park.

Would it be a good idea for our new Management company to write to the owners of No 9 explaining that we have now taken over management from the previous Intermediate Landlord and it has been noted that they park their car in a space which is on our land, and in fact, are not using their own parking space on their drive. We would like to suggest that if they wish to continue using the space, we enter into a car parking licence which will allow them to carry on parking there but with terms (eg £10 per month) and only when their dedicated car parking space is already being used.

I have run off a sample licence from Rocket Law but think there should be some sort of indemnity. I know nothing about licences and wonder if this might create other problems in the future. Would we use the same type of licence to rent out a piece of land they are interested in do you think.

Thank you so much for your help.
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Re: Block of flats - neighbour parking on our land

Postby jonahinoz » Thu Aug 10, 2017 8:21 pm

Hi Dottie,

My understanding is that IF permission is given to access/occupy/use land, then that permission can be withdrawn. It also prevents the accessor/occupier/user from gaining Adverse Possession or a Prescriptive Easement. The problem might be proving that No.9 are acting with permission, not as a right. I presume there is nothing documented? Is there any chance that whoever granted permission first discussed it with a solicitor, who might have kept notes of the discussion. Are there any financial records going back far enough to show any payments from No.9's predecessor?

I don't know where you are located, but in some areas, the going rate to park on somebody's drive can be £20 per week, or more. I'm not suggesting that you should, or could, charge that much. But yes, put it to No.9, and if they go po-faced, perhaps one of your existing tenants would be happy to take over the plot. Such a suggestion might concentrate No.9's mind.

Finger's crossed that No.9 wants to keep it amicable.

John W
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Re: Block of flats - neighbour parking on our land

Postby ukmicky » Fri Aug 11, 2017 12:39 am

Sometimes you need to be clever in the way you approach things .

So you don't alert them to the possibility of claiming a prescriptive easement why don't you park in it. Buy an old banger for 200 quid and move it onto the spot when they go out and leave it there .
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Re: Block of flats - neighbour parking on our land

Postby jonahinoz » Fri Aug 11, 2017 7:44 am

Buy an old banger for 200 quid and move it onto the spot when they go out and leave it there .

Hi UKMicky,

I had similar thoughts, but mine only went as far as parking until No.9 reacted (as soon as he returned home) and then discuss from a position of strength ... possession is nine points ... Your suggestion is much more interesting. :twisted: But £200 for a banger? I tried to sell a tidy estate car with six months MOT. Nobody wanted it, eventually sold to a breaker for £40.I think the problem was the circa £200 road tax. Some small cars are only £30 VED.

DVLA should not reveal the owner of said banger to No.9, unless it is parked on his land. Me? I would write a note on the V5 and SORN declaration, stating that the car is parked on land NOT owned by No.9. The note will not go onto the computer, but will be shown on the microfilm copy. It is an offence to obtain the Registered Keepers details by making a false statement. DVLA will not hurry to answer a request for Keepers details ... unless you own a car parking business.

Would parking a caravan or trailer on the plot be as effective? It would be cheaper, with less bureaucracy.

But the object of this exercise is not to get No.9 into trouble, but to regularise his occupation of land he does not own.

John W
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Re: Block of flats - neighbour parking on our land

Postby Collaborate » Fri Aug 11, 2017 11:24 am

This question has exercised the minds of the judges in the Court of Appeal, fortunately.

Batchelor v Marlow, 28 June, 2001 (Court of Appeal).
The Court of Appeal overturned the High Court decision (11 May, 2000) and held that on the facts of the case, the right to park vehicles on the adjoining land could not be an easement because it was too extensive and effectively excluded the adjoining landowner from being able to use the land .
The right to park the vehicles had been acquired by prescription. In the High Court, the judge had been satisfied that giving the defendants the right to park six vehicles on the land during normal business hours, Monday to Friday, could be an easement as it did not deprive the owner of the land in question of the ability to continue using that land.
The Court of Appeal considered that the implications of that decision for the landowner had not been adequately considered.

Background
An easement is a right over land and not a right to possession of that land or a right of joint user of it (Copeland v Greenhalf (1952) Ch 488).
This legal principle has been in issue in a number of cases in which an easement to store goods or park vehicles has been claimed.
A right to park vehicles can be established as an easement provided that the right is not so extensive that it amounts to an effective exclusion of the owner of the servient land from its land (London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] Ch 1278).
Note added 4 January, 2002: In 18 December, 2001, the Court of Appeal referred to the High Court decision in London & Blenheim. Without intending to suggest that the decision in that case was in any way wrong, the Court of Appeal expresssly left open the question of the right to park could exist as an easement.
Saeed v Plustrade: A right to store goods is also recognised as being capable of being an easement, again provided the right is not so extensive to exclude the servient land owner (Att-Gen of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599).
Whether the right to park or the right to storage is too extensive to exist as an easement will depend on the facts and the degree of exclusion.
This makes the definition of what constitutes the servient tenement important because a right to park vehicles may be too extensive in relation to a small servient tenement but entirely acceptable in relation to a much larger tenement.
The fact that exercising a right involves the temporary exclusion of the servient landowner is not incompatible with the right being an easement (Miller v Emcer Products Ltd [1956] Ch 304).
Facts
The claimant owned land that included a short unmade-up road, known as Albert Road. A track running along the centre of Albert Road was classified as a public highway, but the public did not have any right to use the strips of land either side. Albert Road joined a made-up road.
The defendants ran a car-repair business from premises that abutted the made-up road. Since 1970, the defendants had parked cars on a section of the verge of Albert Road.
In 1990, the defendants lodged a caution against first registration of the strip of verge that they had been using to park vehicles and claimed that they had acquired parking rights by prescription.
The claimant, who owned the verge and wanted to redevelop its land, argued that the parking rights claimed by the defendants were too extensive to be an easement.
The High Court judge held that the defendants had acquired an easement to park the vehicles by prescription, but the easement had to be limited in time to prevent it from being too extensive. The defendants could only park their vehicles on the claimant's land between 8.30 am and 6.00 pm, Monday to Friday.
The claimant appealed.
Decision
The Court of Appeal allowed the appeal.
There can be no prescription of a right so large that it precludes the ordinary use of the property by the owner of the land affected (Copeland v Greenhalf). This is an established legal principle.
The question was whether the defendants' right to park six vehicles on the land during the hours specified by the High Court, left the claimant without reasonable use of the land.
Although the claimant could park in the evenings and at weekends, the commercial or other use that the claimant could in practice make of the land was very limited so that his right to use it was, in effect, illusory.
The defendants' right to park was so extensive that it was not capable of being an easement.
Comment
This case is not new law in that it is established that a right that is so extensive that it excludes the servient landowner, cannot exist as an easement.
It is interesting, however, how the Court of Appeal appears to have approached the question of fact and degree from the angle of what use this particular servient landowner could make of this particular land.
The servient landowner was intending to redevelop the land in question and the implication is that it wanted to be able to charge members of the public for parking.
The size and nature of the servient land and how it can be used will be central to the question of whether the right over the land is too extensive or not to exist as an easement.
The case illustrates the importance of establishing what the implications are for the servient owner of any conclusion that a right exists as an easement.
It will be interesting to see from any transcript that is produced whether there was any discussion of a reduction in the hours of use of the right or the number of vehicles. The right had been acquired by prescription and was associated with the defendants' business and normal business hours. It is not clear whether any lesser right was argued for in the alternative or at appeal.
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Re: Block of flats - neighbour parking on our land

Postby jonahinoz » Fri Aug 11, 2017 4:28 pm

Hi,

I'm guessing that the block of flats has Listed Building Planning Approval, and that the Planners tend to be quite "hawkish" in such matters?

Would the LBPA extend to the grounds, and include details of what area is regarded as car park, boundary features, etc?

If somebody habitually parks elsewhere than in the approved car park, would the Planners be offended, especially if somebody complained?

John W
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Re: Block of flats - neighbour parking on our land

Postby jdfi » Mon Aug 14, 2017 6:06 am

What made number 9 first park here, twenty years ago?

Why would they apparently ignore their own drive?
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