The Daily Telegraph - Saturday - Money
Gary Rycroft Ask a Lawyer
If a neighbour uses part of your land on a regular basis, does this give them a right to claim ownership?
QI
live in an end- of-terrace house and parking in my street is in short supply. At the side of my house is some land which I own, where I park my car. As there’s room for more than one vehicle, one of my neighbours also often parks there. He’s done this since before I moved in, and I’ve never stopped him, but by parking there quite often for at least 15 years has he created a legal right to carry on parking without my permission? – David, via email AThe
right that one parcel of land enjoys over another parcel of land is called an easement, with a right to park on private land being one example. Where there is an easement the socalled dominant land (in this case your neighbour’s house) enjoys a legal right over servient land (the land owned by you, on which your neighbour is parking). It is a situation which usually arises by the granting of a legal right set out in a formal legal document.
However, sometimes it can also arise by long use, that is exercising a right without express permission, but doing so for a long time.
The legal term for a right acquired by long use is a “prescriptive right”. It is a concept which first arose by legal tradition and was recognised by Parliament under the Prescription Act of 1832. The notion which justifies the granting of a right by prescription is that if something has been allowed to happen for a very long time, it must have been permitted in the first place.
In law the requisite time period for a “very long time” and therefore a right by prescription to arise is 20 years. So if your neighbour has parked his car on your land for that time or more, you will have handed him a right to park without your being able to stop him.
The time frame is crucial. You say it has been “at least 15 years”. If you want to stop his use of your land becoming permanent, you must now challenge your neighbour. If you want to stop the parking altogether you could attempt to preserve neighbourly relations by maybe saying you plan to turn where he parks into a vegetable patch. You could even ask him to park elsewhere and offer a sample of next year’s potatoes fresh from the soil.
Or if you are content to let him carry on, you could say you wish to formalise the arrangement and offer him a yearly licence to be renewed on both parties’ agreement every 12 months and on the basis he pays you a nominal sum of say £20 per annum, which you could justify as being what it costs you to maintain the land he parks on.
You could then terminate the licence as and when you decide. But most importantly, you have regained control of the situation.
Alternatively, if your neighbour knows his rights and claims a prescriptive easement, the gloves will be off, but you can then put him on strict proof of evidence it has been something he has been doing continually for 20 years or more. Remember, the burden of proof is on him to demonstrate his claim is valid.
In that case, there are other ways you could seek to rebut any assertion that a prescriptive right has arisen. For instance, if you can show that his use arose because you or any previous owner of your house did give him permission, that would be fatal to his claim. Or if his use has been intermittent and not continual, that could also undermine his claim to a permanent right.
For instance, if he stopped parking on your land for a period without explanation by him as to why and then resumed, that could be seen as a significant break, sufficient to rebut his claim. Recent case law has also made clear that an easement such as this, acquired by prescription, is limited to the extent of the right exercised over time. What I mean here is that if your neighbour has parked only on a Saturday night and no other night of the week, you may argue his permanent right to park will be on Saturday night only.
A prescriptive right does “run with the land”, so once established it may be passed on by one owner to the next. The way a person claiming such a right would normally seek to do this would be to register the easement with the Land Registry. The Land Registry has published guidance on the procedure to do this and how the servient landowner may challenge it.
It is not possible to acquire a prescriptive right over certain land forming part of the railway, harbour, canal or river infrastructure, but for a private landowner such as you, being kind or indeed simple acquiescence to an ongoing situation can lead to a burden on your land which becomes permanent. In your case, urgent action is required.