As she clearly has an easement to pass and
re-pass on this land, she normally acquires no rights over it in respect of
access even if she has been parking on it for 100 years. It would be different
if she had been using it without the benefit of the easement/consent but the
fact of the matter is that she has the benefit.
She could possibly argue that whilst she has an
easement to pass and re-pass, she does not have, in the deeds, and easement to
park and that she has therefore required an additional easement under the
Prescription Act through having more than 20 years use. It is not a good
argument and the bonus of proof, that she has used it for 20 years, is on her
and it is not at all easy to prove unless she had the foresight, 20 years ago,
when she started doing this, to take photographs etc dates on.
There is another issue which does not help her
and that is that she is not allowed to obstruct the right of way in any event
although, if she breaches that covenant continuously for 20 years or more, she
can continue to obstruct it under the ruling in Hepworth v Pickles BUT as she
does not park there all day every day, she cannot continually breach it
My suggestion would be to get a solicitor to
write to her telling her that unless she stops parking on this land, you will
make an emergency application to court for an injunction and court costs,
compelling her to stop parking.
If this were to go to court, it could cost her
quite a few thousand pounds and I really do not think that she is on good
ground so to speak.
I assume that the deeds and the mortgage are in
your sole name.
The last thing you want to do is to pay her the
money and then she decides that she did not realise what she was doing and want
some more I would therefore insist that she sees a solicitor and takes legal
advice even if you have to agree to pay for it if she has taken legal advice on
the money that you are about to pay her, it is virtually impossible for her to
then say she didn't understand what she was doing and didn't realise that she
may have been entitled to more. It should not cost you more than about £250 or
so and the solicitor will be able to draft a simple agreement for you although
to be honest, there is no reason why it cannot be done by a simple letter
provided she does take that legal advice make sure that you pay by cheque so
that there is a record of the money going to her or, better still, send it via
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