Parking right disputes have sparked much litigation but a recent case concerned an unusual combination of circumstances. By Lucy Floate
Following the county court decision in Safestore v RSN Property Ltd [2009] PLSCS 292, it would appear that parking easements are here to stay. Depending on which side of the fence (or road) you sit on, it can make the difference between obtaining a valuable proprietary interest or seeing the value of the property diminish as the ability to use it freely is restricted.
In Safestore, the claimants each owned commercial premises on a private road, at the end of which the defendants operated a dairy business. Each claimant had express rights of way and rights to stop and unload along the road. However, despite express prohibitions against parking, personnel of the claimants parked on the road. The defendants purchased the freehold title to the road. They immediately proceeded to take action against the claimants to prevent them from parking on the road, thus restricting its use to the defendants’ own vehicles for accessing the dairy.
Prescriptive rights
The claimants successfully argued that a prescriptive right to park had arisen as a result of their employees, customers and visitors parking on the road for more than 20 years, and by them exercising that right without permission, secrecy or force.
The claimants’ success depended on three factors. First, the parking along both sides of the road was not so extensive as to amount to exclusive possession and thus deprive the defendants of any reasonable use of the road.
The evidence showed that although those associated with the claimants had parked there for most, if not all, of the working day, the parking did not prevent the defendants from using the road to access their own premises. The defendants were also able to park their own vehicles along the road at night, when the majority of the claimants’ customers, visitors and employees had left. The defendants claimed that the parking had deprived them of any reasonable use of the road because it was effectively reduced to a one-way traffic system. The court rejected this argument, holding that two-way traffic was not needed to establish reasonable use.
Second, although several of the claimants’ title documents contained express prohibitions on parking, the defendants and their predecessors in title were found to have acquiesced in the breach of those prohibitions because they were responsible for enforcing the restrictions and, having observed the parking over a number of years, had failed to do so.
Third, the area on which the parking took place was sufficiently defined for an easement to exist over it, even though there were no defined spaces and those parking along the road did not necessarily park in the same place every day. The court found that it would have been absurd to claim a right to park anywhere on the road, but the evidence clearly showed that acts of parking were confined to the area immediately outside the respective claimants’ properties on either side of the road.
Expert evidence showed that, as far as possible, employees, visitors and customers parked outside the business premises of the relevant claimant. This enabled the judge to order that each claimant had obtained a right for those people to park outside their respective properties an area that could be sufficiently defined by reference to a plan.
Take action early
So what does the decision mean for freehold owners of land on which people park? If they are parking on the property without the owner’s permission, the latter should check its title deeds to see whether rights to park exist. If there is no such right, the owner should take early enforcement action to prevent the parking from continuing.
If there are express prohibitions against parking, it would be wise not to rely on these as protection against rights arising. Action needs to be taken to enforce those prohibitions so that the owner is not seen as acquiescing in the breach. Otherwise, those parking on the owner’s land could acquire prescriptive rights, such as those demonstrated in Safestore. It may be worth erecting signs indicating the boundary of the property and advising that parking is not permitted.
Alternatively, if the space is surplus to requirements, the owner could grant permission in writing to allow the parties to park. This would prevent anyone from subsequently arguing that they exercised any right to park “without permission, force or secrecy”. To make it more of a commercial enterprise, the owner could issue permits requiring a parking fee. If it no longer needs the land, it could sell it to those that do.
Evidence is essential
It is important to remember that any party claiming a prescriptive right to park will need to provide evidence that it has exercised the right without force, secrecy or permission for at least 20 years. In Safestore, the claimants had a witness who had rented storage space at the Safestore branch since 1974 and who was able to find other witnesses to provide evidence in addition to his own. However, others may struggle to adduce evidence in respect of such a long period of time.
If a party has parked on private land for 20 years without secrecy, force or permission and without any significant period of interruption, it could obtain a right to park by prescription. However, if the party is a tenant, these rights can be obtained by the tenant only on behalf of its landlord as freeholder rather than in its own right as leaseholder. Moreover, the rights must be exercised for the benefit of a freehold property over another freehold property.
Businesses should review the extent of their parking do they park in the same place every day and, if so, for how long? Are others able to use that space? If the parking amounts to exclusive possession, the business will not be able to claim an easement but may be able to claim adverse possession.
Provided that the business can prove enjoyment of the easement, it could apply to the Land Registry to have it protected by a note on the title to the servient land. This would ensure that any future owner of the servient land would not, if the easement was not obvious on a reasonable inspection of the land, take free of it.
Lucy Floate is a solicitor at Eversheds LLP
