Prescriptive Easement Parking Case

[Blahblahxx]

Hello,

We are currently defendants in an ongoing Part 8 claim regarding the use of a shared garageway between ours and our neighbours properties.

We have been using the garageway parking between a particular time for the last 29 years, continuously, without permission, and not secretly. They moved in, in 2018. They have no vehicle access due to them changing the configuration of their back gate to a single door. We have offered to release any easement or to come up with an agreement regarding the parking. They have not tried any mediation.

Our property is a shared ownership property owning 50%, our neighbours are freeholders of there’s we are listed as leaseholders.

We have already submitted two Part 36 offers offering to release any easement without asking for any compensation however they want financial compensation which we are not willing to offer.

In their solicitors most recent communication they state that no prescriptive easement is possible as we are leaseholders and there’s a registered right of way.

However,

Practice Guidance 52: Easements claimed by prescription states;

1.2 ‘Firstly, a tenant’s use can establish an easement but it attaches to the freehold estate. This means a tenant cannot acquire an easement over other land owned by their landlord, as a landlord cannot have rights against themself, and this applies whether or not that other land also has a tenant. It also means any easement that does arise will not end with the lease.’ - I take this to mean that a prescriptive easement is possible but it attaches to the property.

and

1. ‘Easements arising by common law prescription or the doctrine of lost modern grant will be legal interests. The purchaser of unregistered burdened land is bound by legal interests. Following first registration of the burdened land most legal easements are overriding interests (section 29 and Schedule 3 of the Land Registration Act 2002) and so capable of binding successive registered proprietors of the burdened land’ - I understand this as a prescriptive easement is likely to be overriding of any original register entries.

this law is so confusing can someone help clarify?

Also for the court I have to submit Standard Disclosure by list can someone clear up for me if this has to include copies of all documents with the form or just the form with the document descriptions?

Thank you, sorry for the long complicated post.

Goodness, are you a litigant in person for this?

Not going to comment on the law because it's not my practice area.

Have you thought about obtaining a written advice from counsel on the law? Are you planning to use counsel for trial?

Standard disclosure by list is a list of the documents you have control of. If the other side wishes to inspect the documents, they have to request within the period given in the directions. (So you don't file the docs themselves with the N265).

Yes, unfortunately litigant in person. Cannot use counsel for trial. I know this puts us at an even bigger disadvantage but we just don’t have the money.

During the earlier attempt at negotiating we employed a solicitor to write a couple of letters that wiped out any money we had. We also tried to obtain advice during that time but nobody seems to have a clear understanding on the law in question so that didn’t help either.

Thank you so much for clearing up the N625. I appreciate it so much. Everything is so confusing :(

Forgot to say this is a Part 7 claim - it was started as a Part 8. Don’t think it makes any difference to my questions.

The garden law forum is very good for this. I got expert legal advice when our neighbours built an extension blocking their own access and we came home one day and found they’d put a new gate in further down the garden. I managed to deal with it without even contacting a solicitor.

Not an expert on this area, but, if the neighbours are your landlords, 1.1 says exactly the same as their solicitor. You, as tenant, cannot get an easement over your landlord's land as that would mean the landlord has rights against himself.

Thanks Beatrice I’ll check it out.

@prh47bridge Sorry to clarify they are not our landlords. Land is not owned by the same proprietor.