Several conditions must be satisfied in order to create an easement by prescription. The rights claimed must have been enjoyed for more than 20 years, nec vi, nec clam, nec precario, which means not by force, nor stealth nor the licence of the owner. Granting permission for the use of rights will therefore preclude time running against a landowner. But will an unsolicited grant of permission prevent the creation of an easement by prescription? A recent High Court decision answers the question and may help to dispel doubts about the effect of unilateral permissions in other areas of the law where “permission” is pivotal.
In Odey v Barber [2006] EWHC 3109 (Ch); [2007] PLSCS 18 , the judge had to decide whether the only type of permission that disproves user as of right is one that is asked for and then granted, or whether an unsolicited permission is a “licence of the owner”. The judge reviewed various authorities.
Several conditions must be satisfied in order to create an easement by prescription. The rights claimed must have been enjoyed for more than 20 years, nec vi, nec clam, nec precario, which means not by force, nor stealth nor the licence of the owner. Granting permission for the use of rights will therefore preclude time running against a landowner. But will an unsolicited grant of permission prevent the creation of an easement by prescription? A recent High Court decision answers the question and may help to dispel doubts about the effect of unilateral permissions in other areas of the law where “permission” is pivotal. In Odey v Barber [2006] EWHC 3109 (Ch); [2007] PLSCS 18 , the judge had to decide whether the only type of permission that disproves user as of right is one that is asked for and then granted, or whether an unsolicited permission is a “licence of the owner”. The judge reviewed various authorities. In Rafique v Trustees of Walton Estate (1993) 65 P&CR 356, the court considered whether a notice that gave permission to a group of residents to use private property would amount to the giving of consent. In BP Properties Ltd v Buckler [1987] 2 EGLR 168; (1987) 284 EG 375 the Court of Appeal held that a unilateral communication from a property owner to a squatter permitting him to continue his occupation of a disputed property prevented his subsequent possession from being adverse for the purposes of the Limitation Act 1980, even though that permission was neither sought, acknowledged nor accepted. The decision of the Supreme Court of New South Wales in O’Mara v Gascoigne (1996) 9 BPR 16, was conclusive. In that case, the judge concluded that “acting on leave volunteered is as much an acceptance of it [permission] as if it had been asked for in the first place”. So an unsolicited permission will prevent an easement arising. Landowners will inevitably seek to stop time running against them by unilaterally granting permission for the continuation of users that have already been established but that have not yet matured into easements by prescription. However, the law, while now clear, may not always be easy to apply, especially where time has passed or permission was granted orally and was not formalised in writing or where it is open to interpretation. Landowners would therefore be advised to confirm in writing the nature and extent of any rights granted or to erect notices confirming that use is with the landowner’s permission, which may be withdrawn at any time. If the rights granted are limited or restricted, landowners should also keep a close eye on usage, to ensure that the user does not alter to such an extent that time begins to run afresh because the usage is inconsistent with the permission that was granted. Allyson Colby is a property law consultant
