Easements

18.12.07

 

The case of Moncrieff v Jamieson was decided under Scottish law and concerned servitudes, the Scottish equivalent of easements. However, the House of Lords stated that there was no difference for the purposes of the case between the common law in England and Wales relating to easements and the common law in Scotland relating to servitudes.

Whether a right to park a car is capable of being an easement has long been a grey area in English law. Previous case law has found against it on the basis that something cannot be an easement if it amounts to exclusive possession of the land by the dominant owner such that the servient owner is "ousted" from their property altogether. The parking of a car in an allocated space is thought by some to amount to such ouster, with the result that such a right is incapable of being an easement.

The facts of the case were relatively unusual. The dominant land was situated at the bottom of a steep slope by the sea. As such, it was not possible for vehicles to reach it. It was accessible only on foot, by a gate and some steps from the servient land. When the dominant land was separated from the servient land in 1973, the conveyance included a right of access from the public road across the servient land.

It was common ground between the parties that this right of access included access with vehicles as well as on foot. They also agreed that it allowed the dominant owner to turn, load and unload, and set down and pick up passengers. However, the owner of the dominant land claimed that the right of access also entitled him to park his car on the servient land as he could only access his property on foot from the servient land. Otherwise he would have to take the car back up to the main road, park it there and walk back again.

The House of Lords endorsed the decision of the lower court. This was that the right of access had, as an incident of it, an accessory right to park such vehicles as are reasonably incidental to the enjoyment of the access to the dominant land.

The case is important for two reasons. The first is that it contains some authoritative dicta on whether the right to park a car is capable of being an easement. Many leases contain such rights. The second reason is that it considers the circumstances in which additional rights will be implied into an expressly grant easement.

Can a right to park a car be an easement?

The previous case law can be summarised by a test formulated by the case of London & Blenheim Estates Limited v. Ladbroke Retail Parks Ltd. This is that a right to park a car will not be an easement if the right granted is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else.

This test was then applied in Batchelor v Marlow. The court found that an exclusive right to park six cars for nine and a half hours, Monday to Friday, meant that the plaintiff's right to use his land was curtailed altogether for intermittent periods throughout the week. "Such a restriction would make his ownership of the land illusory". For that reason the Court of Appeal rejected the claim to a prescriptive easement.

As a matter of principle, Lord Scott in Moncrieff v Jamieson said that he was in no doubt that a right to park was recognised as a servitude. On the question of whether such a right "ousts" the servient owner he pointed out that every servitude prevents some use of the servient land.

Lord Scott thought that it was impossible to say that there would be no use that could be made by an owner of land over which he had granted parking rights. He could, for example, build above or under the parking area, or place advertising hoardings on the walls.

Lord Scott thought the test formulated in the London & Blenheim Estates case (whether the servient owner is left with any reasonable use of his land), as applied in Batchelor v Marlow, needed some qualification. He proposed substituting for it a test which asks whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land. Lord Scott held that sole use for a limited purpose is not inconsistent with the servient owner's retention of possession and control, nor inconsistent with the nature of an easement.

On the question of whether the servient owner was "ousted" from their land, Lord Scott thought that it would not make sense, if an area of land can accommodate nine cars, for the law to recognise an easement allowing the parking of six, seven or eight cars but not nine. However, it was unnecessary to decide the point since any right to park two or three vehicles near the end of the access road in this case would have been over an area significantly larger than that necessary for those vehicles.

Was a right to park ancillary to the easement?

Their Lordships were divided on this point. Lord Hope placed a lot of reliance on the features of the dominant land in this particular case. So, for example, the owners would have to walk about 150 yards, in all weathers and in the dark as well as in daylight, over a significantly steep descent. This would mean, in the case of a mother with very young children, either leaving them unattended at the house while parking the car, or taking the children on foot in such conditions. Lord Hope felt that in this situation, the owner's right of vehicular access would effectively be defeated.

On the other hand, Lord Rodger felt that the geography of the property was simply a matter which any intending purchaser of the house should take into account, and that it would probably affect the purchase price which they were willing to pay.

Lord Rodger accepted that, in principle, the express grant of a servitude of access could carry with it an implied right to park on the servient land if this was essential to make the servitude of access effective. However, he saw no basis for implying into the grant of a servitude of access, which is effective, further rights simply on the basis that they would be for the convenient and comfortable use of the property.

Nonetheless, the views of the majority held sway and the House of Lords found that the right of access had, as ancillary to it, a right to park. It must be remembered that the facts in this case were unusual, since it was impossible to park cars on the dominant land.

Things to consider

Residential developers often prefer to retain car parking spaces within the common parts of the development. The House of Lords' view in Moncrieff v Jamieson was that a right to park a car is in principle capable of being an easement. This should therefore be of assistance to developers facing arguments from purchasers that the car parking spaces should be demised.

Unfortunately on the facts of the case, the House of Lords did not have to go as far as deciding whether this extends to a right to park a car in a single defined space.

This analysis was written by Sarah Allen, associate in Wragge & Co's Real Estate group.

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This analysis may contain information of general interest about current legal issues, but does not give legal advice.