Easements – Right to park – Acquisition – Lost modern grant – Defendant operating garage business and using certain areas of claimant’s adjoining property for customer parking – Claimant bringing possession claim – Defendant claiming right to park on those areas acquired by lost modern grant – Whether such right capable of existing as easement – Whether any such grant by fictional grantor unlawful where infringing right of way – Possession claim allowed – Defendant entitled to easement of parking
The claimant, a registered housing provider and charity, purchased the site of a former petrol station in London NW2 for more than £3m with a view to developing it. The defendant owned adjoining land from which she operated a garage business. The petrol station and garage had formerly comprised a single property but had been divided in two by a 1981 deed that effected a transfer of the petrol station site; that deed conferred a right of way over a passage on the petrol station site, at all times and for all purposes and with or without vehicles, in favour of the garage site. Customers of the garage business used the claimant’s land for parking, since the garage site was situated by a busy road junction and it was not feasible for customers to park on the road.
In late 2003, the then owners of the petrol station site granted a tenancy at will of part of it to the defendant’s husband to use for parking for the garage. A lease was later granted for a period of 24 months.
In 2009, the claimant asked the defendant to remove vehicles from the petrol station site. It subsequently brought an action for possession against the defendant. The defendant acknowledged the claimant’s right to possession of the petrol station site but contended that she held a prescriptive easement to park on three distinct areas of it; she claimed that the easement arose under the doctrine of lost modern grant, by virtue of the use of the land for 18 parking spaces by the defendant and her predecessors in title for 20 years from 1983.
An issue arose as to whether the claimed right could exist as an easement in law. The claimant contended that no easement could arise since that would leave it with no reasonable use of the land; moreover, the defendant had in fact had the sole use of the land during the relevant period. It further submitted that the fictional grantor could not lawfully have granted the claimed easement since it extended over the land in respect of which the right of way had been granted so as to infringe that right and amount to a derogation from grant.
Held: The claim was allowed in part.
The defendant’s garage needed parking spaces in order to operate effectively since the garage was not situated in the sort of area where it would be possible to leave visitors’ cars on the road. On the evidence, the occupiers of the garage site had used the three areas of the petrol station site for parking since the 1970s. Although such use was irrelevant before division of the two sites in 1981, the use had continued almost unchanged over the years. Up to 15 cars a day had been parked in the three areas. In deciding whether a claimed right could amount to an easement, it was necessary to determine whether the party using the land had occupied the whole of the land over which the right was claimed to the exclusion of the landowner. If it had, then that could not amount to an easement. If, on the other hand, the party using the land did not use it to such an exclusive extent, and there were other uses of the land that could be made of it by the landowner, then an easement was capable of arising notwithstanding that the landowner had not in fact availed itself of that possibility. Notwithstanding the defendant’s use of certain of the three areas for parking, there were other possible uses of that land available to the claimant of which it did not seek to avail itself. Where the disputed land remained available for other purposes or uses, then the absence of actual use by the servient owner was unimportant. Although the defendant had used the land to park roughly 15 cars a day on the land during the hours of daylight and sometimes overnight, the claimant had not been excluded from the land and there were still uses to which the land could be put: Moncrieff v Jamieson [2007] UKHL 42; [2007] 43 EG 200 (CS) applied; Batchelor v Marlow [2001] EWCA Civ 1051; [2001] PLSCS 155 considered.
The infringement of rights of way was not the sort of unlawfulness contemplated by the authorities as preventing an easement from arising under the doctrine of lost modern grant: Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 EGLR 15; [2004] 20 EG 168 considered. There was no question of ultra vires or of any crime being committed. Moreover, the grant of the claimed easement could only be unlawful as against the beneficiary of the right of way. The defendant was the holder of that right of way and could consent to the right to park so far as she was able to do so on her own behalf. There was no infringement of the defendant’s own rights in such circumstances.
The acquisition of rights by adverse possession or by prescription was not so much through use as of right as through use “as of wrong” and against the will of one of the parties, in the absence of any permission. The use of the three areas of the petrol station site for parking had originally been without the permission of the owners of that land. Although parking on the three areas had been with the consent of the landowners for a period from late 2003, during the currency of the tenancy at will and subsequent lease granted to the defendant’s husband, that did not mean that the previous period of use was permissive. Consequently, the defendant was entitled to a right to park in the three areas.
Edward Denehan (instructed by Devonshires Solicitors) appeared for the claimant; David Holland QC (instructed by Shoosmiths LLP, of Birmingham) appeared for the defendant.
Sally Dobson, barrister
