Is the right to park a car capable of being an easement?

This question was considered in a Scottish case that reached the House of Lords (Moncrieff v Jamieson [2007] UKHL 42). The short answer is that it can be an easement. One of the interesting questions that was considered in this case is whether there can be an easement where it gives the owner of the dominant tenement exclusive use of the servient tenement. Two different approaches can be discerned in this case. One draws a distinction between exclusive use and exclusive possession. On this view (that of Lord Scott of Foscote) exclusive use is not a problem if the owner of the servient tenement retains control. On another view (that of Lord Neuberger of Abbotsbury) one needs to look at the proportion of the servient tenement that can be occupied by the owner of the dominant tenement; it is a question of degree.

Lord Scott of Foscote also commented on the potentially broad class of rights that can be enjoyed as easements:

‘I can see no reason in principle, subject to a few qualifications, why any right of limited use of the land of a neighbour that is of its nature a benefit to the dominant land and its owners from time to time should not be capable of being created as [an easement].’

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