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Parking and legal issues

1st August 2017

The question of whether parking is a recognised servitude has long been debatable. In 2007 the House of Lords held in Moncrieff v Jamieson that there could be a servitude right to park but fell short of confirming that parking was a recognised servitude. However, a servitude right to park was recognised by Sheriff Reid at Glasgow Sheriff Court in Johnson, Thomas and Thomas v Smith [2016].

The action related to land belonging to the pursuer being used as a residential site for showmens’ caravans. The defender’s land, a long and vacant strip, had been used by the pursuer for a number of years to park various types of vehicles for a variety of purposes. The pursuer claimed a servitude right of parking by prescription. Two questions arose: (1) did Scots law recognise parking as a servitude; and (2) was the right too onerous.

Sheriff Reid noted that following Moncrieff it was only a short step towards recognising a servitude right to park and held that parking was a recognised servitude. The second question required greater consideration since servitudes must not place a restriction too severe on the owner of the land. Sheriff Reid held it did not since there was still something left for the defender (e.g. he could also park on the land and do other things consistent with ownership).

Whilst most parking rights will occur by way of a direct grant, this case highlights the risk of allowing the owner of neighbouring land to park on your land without challenge over a period of time.

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