Virdi v Chana & Ors

An easement to park may fail where it deprives the servient owner of the benefits of ownership and leaves ownership illusory. The applicable question is whether the servient owner retains any reasonable use of the land. A parking easement does not necessarily produce that result merely because it prevents parking on part of the servient land. The court must assess the land actually owned by the servient owner and the uses realistically available to that owner. Uses such as maintaining the land, tending plants, repairing a boundary, altering its surface or placing items may remain material, provided they do not obstruct the parking right.

The Respondents owned 34 Clark Road and claimed by prescription a right to park one motor vehicle on land forming part of 38 Clark Road. The Adjudicator to HM Land Registry found twenty years’ qualifying use and held that the claimed easement was legally capable of existing. The Appellant challenged the legal capacity of the easement, arguing that an exclusive right to park in the only available space ousted the servient owner from the land. The appeal also concerned whether the relevant land was the area marked on the plan or the larger gravelled area found by the Adjudicator.

1. The appeal was dismissed. The Adjudicator was entitled to consider the whole gravelled area, rather than only the area coloured yellow on the plan. The evidence had not distinguished between the two areas, and limiting the issue artificially to the yellow area would have been unjust and caused no prejudice.

2. The governing authority was Batchelor v Marlow [2003] 1 WLR 764. An easement cannot be claimed if its effect is to deprive the servient owner of the benefits of ownership. In the parking context, the question is whether the servient owner is left without any reasonable use of the land, making the ownership illusory. The court remained bound by that decision because it had not been overruled.

3. On the facts, the Appellant’s ownership was not rendered illusory. The part of the gravelled area within her title was insufficient to park a car. Parking on the whole area would require trespass on adjoining land. The inability to park there was therefore not the loss of a reasonable use of the servient land.

4. The Appellant retained other meaningful uses. She could maintain the land, tend or plant trees and shrubs, repair or replace the fence, alter the surface, erect signs and place decorative items, provided that these uses did not obstruct parking. Those uses were not merely theoretical. The Adjudicator had also heard the witnesses and inspected the site, and there was no reason to disturb her factual conclusions.

5. The observations in Moncrieff v Jamieson [2007] 1 WLR 2620, favouring a test based on possession and control, were treated as obiter on this point. They supported the Adjudicator’s approach but did not displace the binding rule in Batchelor v Marlow.

• High Court (Chancery Division): On appeal from the Adjudicator to HM Land Registry, the appeal was dismissed. The court upheld the finding that the claimed prescriptive parking easement was capable of existing in law.