Problems with Estate Roads – Rights of Way and Rights to Park

Whether you or your client have an interest in part or all of an industrial estate or business park, problems can arise out of multi-occupation as occupiers compete for space, whether legally or otherwise. Carl Csukas, Partner in Property Litigation, looks at two recent cases, both of which resulted in proceedings being issued.

  • Our client owned the freehold of a four storey vertical style factory, developed in the 1920’s/30’s, in Acton. It was part of an estate with six or seven other, similar buildings all accessed off a single estate road. As is often the way in property law, problems arose due to economic progress and development. As with most of the buildings, my client only had five or so parking spaces. In the 1920’s/30’s car and commercial vehicle ownership was at a low level and vehicles were small. The nearest main road had become a red route and the side roads required residents’ permits. Occupiers and non-occupiers were, therefore, in the habit of parking unlawfully on the estate road. A party purchased the freehold of the largest estate building, at the far end of the estate road, and the freehold of the estate road. So as to secure and ease access for itself, it sought a declaration that parking on the estate road by other building owners was unlawful and an injunction to prevent such parking. At trial we defeated the claim and established prescriptive parking rights over the estate road in favour of our client (and the four other occupiers named as defendants). The claimant had to bear the legal costs of five parties for its trouble.
  • Our client owned the freehold of offices/warehousing opposite Wembley Stadium. The greater site had developed piecemeal over many decades, there being a jumble of units, access roads and poorly defined boundaries. Running from the public highway there was a legal, private right of way across our client’s land serving several other units. In all relevant deeds that right of way was defined as being 12 feet wide at all points. That legal right of way had been created several decades before on the breaking up of a larger Title. The physical situation on the ground was that the access road of which the legal right of way forms part was actually more than 20 feet wide and had been so for many years. Our client maintained a right to park cars along that part of the access road which was not part of the 12 feet wide legal right of way. One of the unit holders that had the benefit of the legal right of way claimed that it had obtained a prescriptive right of way over the balance of the access road where our client parked and that such parking was an interference with that prescriptive right of way. Obtaining a prescriptive right of way would add value to that unit holder’s land as it would allow large HGV’s to access its unit. Proceedings were issued. Our client claimed trespass and an injunction. The unit holder sought a declaration that it had acquired a prescriptive right of way over the balance of the access road and an injunction to prevent parking by our client. This did not go to trial and a settlement was achieved. Our client is now going to purchase the other unit, granting the unit holder a short term lease back to give it time to relocate it’s business.

Carl Csukas says “The moral is that whether you own the freehold of an industrial/business/retail park or you own or lease a unit on such a park, it is not just the state of repair of the buildings and payment of rent and service charges which need to be thought about. Parking and access rights are extremely valuable and are closely guarded. Deed plans need to be carefully scrutinised and compared with physical reality before interests are acquired. If necessary specific pre-contractual enquires need to be made and evidence sought, perhaps in the form of statutory declarations, from the vendor, predecessors in title or neighbours. Beyond that what is happening on site needs to be closely monitored or otherwise you or your clients could become embroiled in claims of trespass or for prescriptive rights.”

Acquisition of prescriptive rights is complicated and there are a number of ways in which rights can accrue, but under the Prescription Act 1832 for rights of way and rights to park the basic prescriptive period will be 20 years. The Property Litigation Team are experienced in advising on this type of dispute both before and after acquiring a property.

If you have any queries or concerns do not hesitate to contact Carl Csukas (on 0121 710 5842) or Victoria Khandker (on 0121 710 5843) who will be happy to assist.

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