Introduction
Welford v Graham [2017] UKFTT 0058(PC) (Judge Elizabeth Cooke)
Wilson v Bowe [2017] UKFTT 0244 (PC) (Judge Jefferis)
Two recent cases show how difficult it can be to acquire an easement by prescription. Both these cases involved an application to Land Registry by a landowner to register a claimed right of way by prescription against the title of the land claimed to be subject to it. In both cases the owners of the land claimed to be affected objected to the registration. In both cases, as agreement could not be reached between the parties, the matter was referred to the Land Registration division of the Property Chamber of the First Tier Tribunal. It is this part of the Tribunal Service which now exercises the jurisdiction previous conferred upon the Adjudicator to HM Land Registry.
The Cases
In Welford the application was made on the basis of the type of prescription known as ‘lost modern grant’. It could not be made under the Prescription Act 1932 as for that Act to apply the use has to continue up until the time that action is taken to claim an easement. But for lost modern grant any 20 years continuous use will suffice, provided that it is used ‘as of right’ i.e. openly, without force and without permission. 20 years use prior to 2002 was being claimed and, of course, difficulties occurred with proving the use in accordance with these principles. This will often involve previous owners of the land. Indeed, as the applicants had only acquired the land after 2002, they could give no evidence of use themselves. The difficulty here was that people die and their memories fade. Although use without consent could be proved from 1978 to 1988, the subsequent user of the right was now dead and there was thus .no proof i.e. confirmation from him, that the user was without consent for the period after 1988. The claim to the easement was therefore rejected.
In Wilson, the issue was once again the matter of consent – or lack of it. There was evidence of user without consent from 1976 to 1980 but evidence was also accepted that oral consent had been given in about 1982. But the consent had not been requested by the then user; did that make any difference? No said the Judge; an unsolicited permission would be sufficient to stop the user being as of right from then on. The applicants then claimed that after the permission was given that there had been a ‘radical change’ in the use of the track, such that the use became outside the oral permission and thus once more ‘as of right’. Although such a change can of use can occur and make the use ‘as of right’ once more, the evidence was not sufficient to justify such a change in this case.
Conclusion
It is therefore clear that very strong evidence is needed to establish a prescriptive right. And you must be very sure of your evidence before making an application to Land Registry.
Equally, when buying a property which relies on a claim to such a right an indemnity policy is essential. At the very least it will result in the payment of compensation in respect of the reduction in the value of the property if the servient owner disputes the right, It will also, usually – depending upon the terms of the policy – cover legal expenses in defending any legal action brought by the servient owner. But do remember that if the client takes steps to assert the claim – for example by making an application to Land Registry to register the easement against the servient land, as in these case, the terms of the policy will almost always permit the insurer to revoke the policy. Policies can only be used as a shield, not a sword. Ensure that clients understand this.
