The deeds say Together with the right to use jointly and in common with the owners and occupiers for the time being of the adjouning premises now or formerly of the lessor and all other persons for the time being entitled thereto the party drains water and other services used in connection with the said premises with liberty for the said owners and the persons aforesaid to enter upon the said premises for the purposes of opening cleansing and repairing the said party drains and other services if and when necessary TOGETHER ALSO with full right and liberty in common with the owners and occupiers of the adjoining land and hereditaments formerly or now of the lessor and all other persons having a right thereto to pass and repass over and along the party passage leading from Goosemoor Lane to the rear or the demised and adjoining land and premises and coloured blue on the said plan the lessee paying an equal part or share with the adjoining owners using the same of the cost of maintaining and keeping the said party passage in repair. Just to clarify, when I say I own the right of way, I mean that I am now the freeholder of the drive which has the right of way over it..
As she clearly has an easement to pass andre-pass on this land, she normally acquires no rights over it in respect ofaccess even if she has been parking on it for 100 years. It would be differentif she had been using it without the benefit of the easement/consent but thefact of the matter is that she has the benefit.
She could possibly argue that whilst she has aneasement to pass and re-pass, she does not have, in the deeds, and easement topark and that she has therefore required an additional easement under thePrescription Act through having more than 20 years use. It is not a goodargument and the bonus of proof, that she has used it for 20 years, is on herand 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 herand that is that she is not allowed to obstruct the right of way in any eventalthough, if she breaches that covenant continuously for 20 years or more, shecan continue to obstruct it under the ruling in Hepworth v Pickles BUT as shedoes not park there all day every day, she cannot continually breach it
My suggestion would be to get a solicitor towrite to her telling her that unless she stops parking on this land, you willmake 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 herquite a few thousand pounds and I really do not think that she is on goodground so to speak.
I assume that the deeds and the mortgage are inyour sole name.
The last thing you want to do is to pay her themoney and then she decides that she did not realise what she was doing and wantsome more I would therefore insist that she sees a solicitor and takes legaladvice even if you have to agree to pay for it if she has taken legal advice onthe money that you are about to pay her, it is virtually impossible for her tothen say she didn't understand what she was doing and didn't realise that shemay have been entitled to more. It should not cost you more than about £250 orso and the solicitor will be able to draft a simple agreement for you althoughto be honest, there is no reason why it cannot be done by a simple letterprovided she does take that legal advice make sure that you pay by cheque sothat there is a record of the money going to her or, better still, send it viathe solicitor.
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Thanks I own the property outright and the visitor in question does not park there for longer than 1 or 2 hours as she lives elsewhere and is only visiting her mother.
In which case, she definitely needs to read somebetter law books because I think she has more chance of winning the lotterytwice in a week than winning this in court
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