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Archive for July, 2017

You can’t park there!

In its June 2011 Report to Parliament, ‘Making Land Work: Easements, Covenants and Profits A Prendre’, the Law Commission stated the time was ripe for a comprehensive review and reform to this area of law.  On 18 May 2016, following the Queen’s Speech, the Government announced it would bring forward proposals to respond to the Commissioners’ recommendations in a draft Law of Property Bill.  No such Bill is currently before Parliament although the website states that Draft Bills for the new Session of Parliament will be added when confirmed.  We wait with interest.

In the meantime, the courts continue to determine issues arising and one question which has always caused difficulties is the extent of an easement.  It is there to accommodate the dominant tenement but what happens if the dominant tenement is extended?  The point arose in Gore v Naheed and anor [2017] EWCA Civ 369 giving the Court of Appeal an intersting opportunity to review the law as it presently stands.  The dominant land, owned by Mr Gore and known as The Granary, had the benefit, in common with other lands, to a right of way to go with animals, carts and wagons and return over the servient land which connected the site to the public roadway.  It was common ground that Mr Gore could drive a car or other vehicle to the front door of The Granary and to park there for the purposes of loading and unloading the vehicle.  However, land adjoining The Granary was obtained by adverse possession upon which Mr Gore built a garage for his property.  The question before the court was whether or not Mr Gore could obtain direct access to the garage for the purposes of leaving a car parked there for an indefinite period.  Previous cases had determined that an easement cannot be used to increase the overall use of an easement but might be used for an ancillary use of the dominant land.  Considering the facts and terms of the grant, the Court of Appeal agreed with the first instance judge that Mr Gore could park his vehicle in the garage so long as it were not let or used by a third party.