Welford v Graham [2017] UKUT 297 (TCC)
Easements, the right of use over the property of another, generally relate to rights of way whether the right be for access or for services or otherwise.
Most easements are express easements and are contained within a deed entered into by the owners of the two parcels of land affected. The terms of the easement and the rights and reservations of the respective parties are clear.
However, easements may also be implied (for example where pipes lay under neighboring property and services run through those pipes) or they can be prescriptive (as of right), through long use.
A prescriptive easement is one where the use must be as “of right” and not as a result of force, secrecy or permission and for a minimum period of 20 years.
A prescriptive easement may be established by long use in one of three ways:
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Common Law;
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Under the doctrine of lost modern grant; or
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By statute – the Prescription Act 1832.
A recent appeal case dealt with the evidence needed to be able to acquire an easement by prescription. The case involved an application by the Welfords (as claimant) to Land Registry to register a claimed right of way to a warehouse on their land by prescription against the title of the land over which the right of way was made, owned by the Grahams. The Grahams objected to the registration.
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. For the doctrine of lost modern grant to apply, any 20 years continuous use will suffice, provided that it is used ‘as of right’ i.e. openly, without force and without permission.
The burden of proof lays on the claimant and it is often difficult to prove as there is rarely documentary evidence and land changes ownership meaning that documents are lost or people that have knowledge move or can be lost. Indeed, in this instance the Welfords were reliant upon their predecessor’s use of the land.
However, provided the use has been for the requisite period of time and in the requisite manner, there is a rebuttable presumption that the easement has been enjoyed without permission.