Without sufficient evidence of what was in contemplation at the date of grant, the court will not imply ancillary rights to an easement.
The Central London County Court has struck out parts of a defence claiming entitlement to an easement of parking on a roadway, ancillary to a right of way, in Harepath SW19 Ltd and another v Kufta and others (claim no. J10CL008).
The claim concerned an industrial estate at Elm Grove in Wimbledon. Vehicular access to the estate was along a roadway owned by the claimants. The first and second defendants owned a garage at the end of the roadway which benefited from a right of way granted to their predecessors in title in July 1971.
The defendants claimed that they and their customers had been parking on the roadway since they acquired their part of the land in 1984 and the transfer included an easement of parking as a right ancillary to the right of way.
In Moncrieff and another v Jamieson and others [2007] UKHL 42; [2007] PLSCS 201, the House of Lords recognised that an easement of parking could exist as ancillary to a right of way if it was necessary for the enjoyment of the right of way. However, the right had to be implied into the transfer in question by reference to the facts and background existing at the date of the transfer.
The factors militating against the implication of the ancillary rights were: at the date of the transfer the land already had three car parking spaces; the transfer included a covenant that nothing would be done on the roadway to prevent the transferor and other owners/occupiers having a right of way; and the defendants could only call evidence of use from 1984 onwards when they acquired the land.
The defendant argued that it must have been contemplated that landowners of units on an industrial estate would need to park on the roadway, but there was no evidence that it could have been contemplated, in 1971, on the transfer and grant of the right of way, that there would be a need to park on the roadway. The fact of regular parking on the roadway from 1984 did not mean that what was contemplated in 1971 could be inferred. The court decided that the use of the roadway was intended to be limited to access to and from the land itself.
Louise Clark is a property law consultant and mediator
