Commercial Property Blog: Has your garden shrunk or is your neighbour parking on your land?6th November 2013

The recent case of European Urban St Pancras Ltd v Glynn has been a timely reminder of the ways in which neighbours can acquire easements over each other's land through long usage.

Mrs Glynn ran a garage and, for over 30 years, had parked customers' cars on land, which actually formed part of the next-door petrol station. A developer, who bought the petrol station intending to replace it with flats, got an unpleasant surprise when the court ruled that Mrs Glynn had the benefit of an easement to park cars on his land, acquired through the snappily named "doctrine of lost modern grant".

An easement is a right over one piece of land, which benefits another piece of land. The right must "accommodate" the land it benefits, so it can't be something that is useful to the owner of the land personally without actually improving the land. Finally, an easement cannot be so extensive that the owner is excluded from possession or use of their land. This can make it hard to demonstrate that a right to park is capable of being an easement, particularly where the car is parked pretty much continuously. However, the gradual trend seems to be that courts will tend towards finding rights to park capable of being easements, including theorising that landowners could still use the land beneath parked cars.

So, when does casual parking in next door's front garden turn into an easement, which benefits your land permanently?

Easements can be granted expressly or (as with Mrs Glynn) acquired by long user in one of three (all slightly archaic) ways:

1. Through common law, by a presumption of a long user stretching back to before legal memory - yes the law does have a memory and it started in 1189 when King Richard I took the throne. However, if a landowner can demonstrate that this is not the case then such a claim would not succeed. For example, a right to park a car would fail given that Henry Ford sold his first Model T in 1908…
2. Using the Prescription Act 1832, which grants a legal easement where a right has been exercised for an uninterrupted period of 20 years. Any interruption for more than a year will prevent an easement being acquired by this method (even when 20 years use was clocked up before the interruption) so if you (and/or previous owners of your land) have exercised a right over neighbouring land for the previous 20 years and the neighbouring owner then erects a fence, you should accuse him of interfering with your easement promptly or risk losing the right.
3. Through "lost modern grant"; a judicial invention, which pretends that, if a right over land has been exercised for 20 continuous years at any point, a legal right to do so must have been granted by the owner of the land and then lost. This might sound like "the dog ate my homework", but it is a tried and tested method of establishing an easement and is very useful in cases where the use has ceased or been interrupted so that the Prescription Act cannot be relied upon.

What must you do during the 20 years you spend exercising your right…

Simply parking on next door's land is not enough, it must be done "as of right", ie as though you are entitled do so, which essentially means without using force, without doing it in secret and without the landowner's consent. The logic is that if you owned the land on which you are parking then you would not have to crowbar your way through a fence to gain access, you would not park under the cover of darkness, sleep fitfully and then retrieve your car before dawn breaks and you would not be given permission to park because the land would be yours, to do with it as you wish.

A landowner who knows that his neighbour parks on his land and who does nothing to prevent this is not, through his inaction, consenting to the parking. Written evidence of consent i.e. a licence or letter is likely to be necessary to successfully defeat a claim for an easement. A licence consenting to use is unlikely to survive a sale of the property so that a new owner will need to grant a fresh consent in order to avoid the party exercising the rights starting to clock up the 20 years of use necessary to acquire an easement.

If next door are reversing into your drive as you read…

• Erect a physical barrier around your land to stop the right being exercised.
• If that is impractical or if you want to avoid garden shears being drawn at dawn and you are happy for the neighbour to continue using your land, but don't want them to acquire legal rights to do so, then document your consent to the use. Make sure the licence granting consent can be terminated on notice at any point in case you, or a future buyer, want the use to cease.

If you are buying land, particularly if you want to develop it in any way, it is vital that you make sure when inspecting it (and by asking the seller about historic use) that there is no evidence of neighbours exercising rights over the land. If any such use is apparent, establish exactly how long it has been going on and what impact that could have on your plans for the land.  

About the author

Katherine Ekers qualified as a solicitor in 2011 and is a rising commercial property star at Forsters LLP.