It has long been established that rights of way by prescription must be claimed by and against freehold interests in land. Tenants can acquire prescriptive rights of way for their landlords, which they can then enjoy as tenants. However, what is the position if a third party seeks to acquire a prescriptive right of way over land that is let to a tenant?
The courts will ask what the owner of the servient land knew prior to the date of the grant of the lease: see Pugh v Savage [1970] 2 QB 373. In cases where the user began prior to the grant of the lease, and the freeholder knew or ought to have known about it, time will continue to run against the freeholder, even if it cannot prevent the user from continuing because it has granted a tenancy on terms that prevent it from doing so. If the landowner was ignorant of the use that was being made of its land prior to the grant of the lease, or the user began after the lease was granted, the courts will ask what the landowner knew about the user during the term of the lease, when it discovered it, and whether it could have done anything to prevent it. In this last respect, the terms of the tenant’s lease will be crucial.
These propositions have just been affirmed by the Court of Appeal in Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738; [2007] 02 EG 125 (CS). The case places landlords on notice that they cannot sit back and rely upon the fact that their premises have been let to a tenant to counter a claim to an easement by prescription. This is because most leases place tenants under an obligation not to allow, or to take all reasonable steps to prevent, the acquisition of any easements over the landlord’s premises. The Court of Appeal observed that covenants like this will enable a landlord to prevent any trespasses from continuing. The landlord will be entitled to require the tenant to comply with its obligations under the lease – and, should the tenant fail to do so, the landlord will have the right to forfeit the lease and deal with trespasser. The decision serves as a warning to landlords not to allow trespasses to go unchecked. A landlord that fails to act on actual or constructive knowledge that an adjoining landowner is using its property for access runs the risk that its freehold investment will become subject to prescriptive rights of way.
Allyson Colby is a property law consultant
