Can you claim an implied ‘right to park’ as an easement? The answer is that you can, but it is extremely difficult to do so.

In fact, the HL has recently made it even more difficult. Having said that, in the particular case it did find that there was an implied right to park but that was in unusual circumstances. The case involved remote land on the Shetland Isles which was very inaccessible, with no vehicular access, and where it would have been extremely arduous to get to the dominant land if there had been no right to park on the servient land. However, there was an illogicality about its decision that the HL recognised (‘the extraordinary result... therefore seems to be, that if you are lucky enough to have a servitude of access to your house that has no parking... you get free parking on the servient owner’s land because any other solution would be intolerably inconvenient to you, whereas if you reach home via a public road, everyone accepts that you must...traipse off to find a parking space elsewhere’).

An implied easement to park will be very rare. However, it seems clear the court will now imply such a term if it is reasonable and equitable, and is necessary to give business efficacy to the original sale contract (provided it does not contradict any express term of the contract). In general terms, such an easement is likely to be restricted to what is ‘necessary’ (eg parking for two, or at the most, three cars). Although the claimant won in this case, it should not be seen as a green light for other implied parking easements. The prudent conveyancer will always ensure that parking issues are properly dealt with in the documentation (ie any right to park is expressly dealt with, and conversely, any implied right is specifically excluded). See note on Moncrieff v Jamieson [2007] UKHL 42 in [2007] SJ 1478. © Practical Lawyer