Several conditions must be satisfied to obtain an easement by prescription.
The rights claimed must have been enjoyed for more than 20 years “nec vi, nec clam, nec precario”. This means that the use must not have been obtained by force, or through stealth, or with the permission of the owner. Granting permission for the use of rights will therefore preclude the user being “as of right” and prevent time running against a landowner.
The litigation in Welford v Graham [2017] UKUT 297 (TCC); [2017] PLSCS 152 concerned a claim to a right of way over a yard, which was unsuccessful at first instance. The judge in the First Tier Tribunal accepted that the owners and occupiers of a joinery workshop had driven across the yard to obtain access to their workshop for at least 20 years. But the judge was not satisfied that the user had been “as of right” throughout that period.
The current owners of the properties had each acquired them in 2012. Previous owners of the yard had given evidence that they had not given permission for the use of the yard during the 10-year period in which they owned it. But there was no evidence to confirm whether the subsequent owners had or had not granted the owners and occupiers of the workshop permission to use the yard.
The current owners of the workshop appealed to the Upper Tribunal. They argued that the judge had been wrong to require proof of the absence of permission for the use of the yard. They accepted that a claimant must prove that the use relied on was use “as of right”, but claimed that there is an evidential assumption that if putative rights are exercised for the requisite period and in the requisite manner (ie openly and so as to bring home to a reasonable owner of the servient tenement that a right was being asserted) then there was a rebuttable presumption that an easement had been enjoyed “as of right” – and without anyone’s permission. A servient owner can, of course, provide evidence to the contrary, in order to rebut that presumption, in which case, the court must then make up its own mind.
The Upper Tribunal considered that the existence of this evidential presumption was supported by the authorities and by good sense. Otherwise, the claimant would have to adduce evidence disproving the existence of express or implied permission at any time during the period of qualifying use. In other words, the claimant would have to prove a negative – and would often be unable to do so, especially if there had been more than one owner of the land.
The owners of the workshop had offered the tribunal evidence that the yard had been used openly and without interruption for a sufficient period of time – and the owners of the yard had not provided any evidence that rebutted the evidential presumption. It followed that the judge at first instance ought to have held that the claimants had shown relevant use, as of right, for the requisite period, and that they were entitled to a vehicular right of way for the benefit of the workshop.
Allyson Colby is a property law consultant
