A claim to a prescriptive right of way over a driveway has failed because the use was with the consent of the owner of the driveway in Giorgio Baldessari Hoger Von Hogersthal v Viktoriya Boyan Central London County Court Claim No F00CL213, a case which underlines the importance of full disclosure.
The parties were neighbours in New Eltham, South East London. The claimant’s property was in front of the defendant’s property and adjacent to her driveway. The court found as a matter of fact that from 1987 there was a gate in the fence at the rear of the claimant’s property giving access to the defendant’s driveway and that from January 1988 the claimant’s predecessors in title used the gate as an accessway from the road to the gate and back again for general access and to take wheelie bins out to the road. Such use of the driveway became contentious from September 2017 when the defendant obstructed the claimant’s use of the gate onto the driveway.
The claimant sought a prescriptive easement at common law under the Prescription Act 1832 and by the doctrine of lost modern grant. To establish a prescriptive right of way it is necessary to show enjoyment of the right of way for a period of at least 20 years ending immediately before the claim is issued. Under lost modern grant any 20-year period will suffice. In either case the use must be (i) peaceful; (ii) open; and (iii) not based on any licence from the owner of the land Gale on Easements 21st Edn para 4-116-7. Use which is acquiesced in by the owner is “as of right” which is the foundation of prescription, whereas use with the permission of the owner is not.
The court found that there was peaceable use for at least 20 years before September 2017 and that such use was never secret. The key question was whether the use was with permission or merely tolerated. A former neighbour gave evidence of a conversation in late 1987 or 1988 whereby the defendant’s predecessor had agreed that the claimant’s predecessor could use the gate as it was easier to agree to this than to have a disagreement.
The claimant had failed to make full disclosure of the conveyancing file from 2014 when he acquired the property and the defendant sought specific disclosure. Consequently, documents came to light during the trial which established that the vendor had confirmed that there were no rights of access to the side gate which had been used for the purpose of taking wheelie bins to the front of the property with the knowledge and express consent of the defendant’s predecessor. The non-disclosure was deliberate: the claimant could not genuinely but mistakenly have believed the documents to be privileged.
The judge concluded that the arrangement was consistent with a request for and grant of permission which was personal to the claimant’s predecessors and came to an end when the property was sold to him (London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 1 P&CR 13). The claim failed on both bases.
Louise Clark is a property law consultant and mediator
