A sheriff in Glasgow has recently decided that a servitude right of parking over a neighbour's land may be created by the exercise of the right for twenty years - without the right having been granted with the agreement of the affected neighbour.
With industrial units and commercial premises being prime sites for unauthorised parking, property developers, surveyors and all those with interests in such property may wish to know more about the circumstances in which a right to park on land can be created without their consent.
Johnson, Thomas and Thomas v Smith & others
Johnson, Thomas and Thomas owned a site in Rutherglen that was used as a residential site for showmen's caravans. On the southern boundary of the site was a narrow strip of vacant ground which belonged to the neighbouring property. On this strip of land, various tenants of the residential site would park vehicles, including articulated lorries.
Johnson, Thomas and Thomas went to court and argued that they had a servitude right to park, acquired simply by the open and interrupted exercise of the right for a continuous period of twenty years. The owner of the site on which the vehicles were parked disputed that claim. It was argued that recognition of the servitude right to park would effectively deprive the owner of the use of their land.
The sheriff decided that it was possible for a servitude of parking to be created simply by uninterrupted use for twenty years provided that it was established that the right to park was for the benefit of neighbouring land. The sheriff considered that the owner of the land affected could still use the ground below the parking site, and the space above it, so that ownership was not denied by the existence of a right to park on the ground itself. The sheriff recognised that the servitude could exclude the owner from use of the ground.
The Sheriff found that parking which results in the "partial or total exclusion... from mere physical occupation" would not prevent a servitude arising. This was because, in the view of the sheriff, a servitude of parking would not prevent the owner of the burdened property from building above or beneath the parked vehicles, or advertising on the walls surrounding the parked vehicles. The Sheriff also found that a vehicle can competently be deemed to be parked for a period of many months.
Could a neighbouring owner acquire rights to park on your land?
The case clearly has implications for any owner of land on which a neighbour or persons permitted by the neighbour (such as tenants) have been parking for a long period without their being any legal agreement in place.
If you are concerned about the use your neighbours are making of your commercial land, please contact your usual Brodies contact.