Easement question (attn. Mac)

Easement question (attn. Mac)

Postby jonahinoz » Thu Aug 10, 2017 8:26 am

Hi Mac,

My question is provoked by your comment in the "BLOCK OF FLATS PARKING" discussion. I thought it better to open a new discussion, rather than add it onto the other discussion.

If somebody parks on my land for 20 years, they get an easement to continue parking, and I cannot stop them. I don't like the idea, but accept it's the Law of the Land.

But I have an expressly documented right to park on my land. Does the prescriptive easement (I don't think it's Adverse Possession) prevent me exercising my right to park on my land, when it is not occupied by my neighbours car? Can he demand that I move my car when he returns, and wants to park his car? What if, during the 20 year period, I (or anybody) had parked a car on the plot, just once? Would that stop that clock ticking?

It doesn't feel right that an undocumented, undisclosed, and as yet unclaimed easement can override, a documented, and expensively researched Right to Enjoy.

John W
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Re: Easement question (attn. Mac)

Postby ukmicky » Fri Aug 11, 2017 2:08 am

Gaining a parking easement is not as easy to gain as other forms of easements


Firstly if you have an express easement, its not your land so any claim would be against the leaseholder or freeholder but as you have an easement your legal interest in the land would allow you the right to be heard if it went to court.

Argument 1

Legal principle 1. If you have an express easement granting you exclusive use of this land to park on then the servient owner would be prevented legally from granting any further easement over your parking spot because if he did you could claim derogation from grant.

Legal principle 2 The scope of a prescriptive easement cant go beyond that which the owner is legally capable of granting, which is why an easement over leasehold land will only survive for the length of the lease.

Therefore your argument to a court would be as a prescriptive easement once gained is treated as if it was actual granted by the servient owner and as the servient owner couldn't legally grant any further easements over your parking space or you could claim derogation from grant a prescriptive easement is not legally capable of being gained.

Argument 2 (The ouster principle. This argument has legal precedents and has a better chance of winning )
If you have an express easement granting you exclusive use of this land to park and you have no where else within the terms of the easement to park on the servient owners land then your argument to the court would be that the outer principle should apply preventing any prescriptive parking claims.


If you don't have exclusive use you can still try the ouster principle but if you lost the argument and the easement was gained if would exist along side yours. First person home gets to park .
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Easement question (attn. Mac)

Postby Collaborate » Fri Aug 11, 2017 11:27 am

See the caselaw I posted on the other thread about prescriptive parking easements.

One quote from that is that an easement cannot give the dominant land exclusive use, as an easement is a right over land not a right to possession or joint user.
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Re: Easement question (attn. Mac)

Postby jonahinoz » Fri Aug 11, 2017 4:19 pm

Hi Both,

Thanks for trying to clarify things. My brain hurts.

I think you are saying that if he who seeks domination vacates the plot, and the paper owner (Petender) promptly moves a vehicle onto the site, the Dominator would need to take the Pretender to court, at great expense, with no guarantee that he would be awarded total domination ... it might be restricted to certain days and/or times. That sounds like a risky gamble.

If the Pretender then vacates the site, he risks the Dominator moving back in. Assuming there has been no court case, is there anything to prevent the Pretender fencing the site, complete with padlocked gate, while his vehicle is in occupation? Would the Dominator be entitled to break in?

John W
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Re: Easement question (attn. Mac)

Postby jdfi » Mon Aug 14, 2017 6:09 am

jonahinoz wrote:Hi Both,

Thanks for trying to clarify things. My brain hurts.

I think you are saying that if he who seeks domination vacates the plot, and the paper owner (Petender) promptly moves a vehicle onto the site, the Dominator would need to take the Pretender to court, at great expense, with no guarantee that he would be awarded total domination ... it might be restricted to certain days and/or times. That sounds like a risky gamble.

If the Pretender then vacates the site, he risks the Dominator moving back in. Assuming there has been no court case, is there anything to prevent the Pretender fencing the site, complete with padlocked gate, while his vehicle is in occupation? Would the Dominator be entitled to break in?

John W


Surely fencing would take it into adverse possession territory?
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Re: Easement question (attn. Mac)

Postby jonahinoz » Mon Aug 14, 2017 5:59 pm

Surely fencing would take it into adverse possession territory?

Hi JDFI,

The Dominator occupies the plot, but vacates it daily. The Pretender has a claim to the plot (he owns it) but does not occupy it ... perhaps doesn't want to occupy it, just retain possession.

If the Pretender occupies the plot which may only take a few seconds to achieve, he has claimed possession. But the Dominator may call in a specialist and have whatever is occupying the plot (a vehicle) removed, perhaps onto other property owned by the Pretender.

To consolidate his position, the Pretender can then erect a fence around property he already own. The question of Adverse Possession does not arise. I think.

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