Montcrieff v Jamieson [2007] 1 WLR 2620

Key point

  • Lord Scott’s judgment departed from the strict application of the ouster principle in previous parking cases and rejected the test in London & Blenheim Estates

Facts

  • An easement to park cars was claimed, there was an existing express right of access by car

Held (House of Lords)

  • The right to vehicular access has the ancillary right to park where it was necessary for the comfortable use and enjoyment of the servitude; in the present case there was

Lord Scott

  • Sole user is quite different to exclusive possession, the sole use of coal shed does not prevent servient owner from using the shed for purposes of his own
  • The approach by Judge Paul Baker QC in London to reconcile Wright and Copeland was wrong: the servient land is not the totality of the surrounding land of which the SO is the owner, it is the land over which the easement is enjoyed
  • Otherwise easements can be destroyed by selling surrounding land except for land over which easement is exercised
  • The test in London and Batchelor of whether the exercise of an easement would leave the servient owner with no reasonable use is to be rejected
  • It is impossible to assert that there would be no use by servient owner over land which he granted parking rights: he could build over or under it for example
  • It is uncertain what amounts to reasonable use – why should the right to park 5-8 cars amount to a easement but not 9?
  • “I do not see why a landowner should not grant rights of a servitudal character over his land to any extent that he wishes”
  • The test should be replaced with one that asks “whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land”

Lord Neuberger

  • It would be contrary to common sense that the parking arrangement is debarred from being a servitude simply because the parties have chosen to identify a precise place in the area and the space is just big enough to hold the vehicle
  • A right can be a servitude even if the servient owner is effectively excluded from the property
  • There is force in Lord Scott’s argument that there can be a servitude even if dominant owner is granted exclusive occupation as long as the servient owner retains possession and control
  • However, there may be unintended consequences: an occupational licence for the exclusive right to store anything would amount to an easement

Commentary

  • Lord Scott takes a wider approach to the ouster principle than in prior cases, but Lord Neuberger is more wary