Prescriptive easements: the fiction continues

20 November, 2017
by: Cripps Pemberton Greenish

Acquiring rights by prescription is complicated and can be very confusing. The Upper Tribunal judgment in the case of Welford and others v Graham and another[1] is a useful reminder that provided the claimant can evidence the use of a right in the requisite manner for the relevant time period, the claimant will benefit from an evidential presumption that they had enjoyed the easement as of right.

First things first: how is an easement acquired by prescription?

Prescription derives from a principle of English law that exercising a right for a long period of time, without interference and as of right (that is, without force, without secrecy and without permission) should be capable of legitimisation. This is combined with an assumption (in some cases a misleading notion) that the right originally derived in a grant.

There are three ways of acquiring easements by prescription. One of these is the doctrine of lost modern grant and it is the method that is relevant to the case in question.

Under the doctrine of lost modern grant, if a right has been enjoyed for at least 20 year without any other lawful explanation, it is presumed:

1. to have had its origin in a deed of grant made after 1189; and

2. that the deed of grant has been lost.

Practically speaking, this won’t actually have happened, hence the fiction.

A claim of lost modern grant based on 20 years of use is not rebutted even when the use is interrupted after the required 20 years. The period of 20 years’ enjoyment can be claimed for any period in the past, and there is no need to prove the existence of the deed of grant, nor the parties to it. Even demonstrating that no grant was in fact ever made may be insufficient to rebut the presumption.

Welford v Graham: the facts

The Welfords were the registered proprietors of a former joinery workshop. The Grahams were the registered proprietors of an adjoining yard. The Welfords claimed that the workshop had the benefit of a right of way over the yard, with or without vehicles, for access to and egress from the workshop. As the right had not continued until the time the dispute arose, the Welfords relied on the principle of lost modern grant to establish a right of way across the yard on the basis of use by them and by their predecessors in title from 1964 to 2012.

The First-Tier Tribunal (FTT) accepted the evidence of over 20 years of use. However, on the basis that to satisfy the doctrine of lost modern grant a potential easement must be used ‘as of right’ (that is, without force, without secrecy and without permission), the court refused to grant an easement because the Welfords could provide evidence of use without permission for only 10 of the required 20 years.

The Welfords appealed that decision on the ground that the FTT was wrong in relation to the burden of proof as to the presence or absence of permission for the use of the yard.

The evidential presumption

The Upper Tribunal (Tax and Chancery Chamber) (UT) allowed the appeal.

The UT held that although the legal burden of proving that the use was without permission was on the party claiming the easement, that party could be assisted by an evidential presumption that:

1. If the alleged easement was used in the requisite manner for the necessary period of time, there was a rebuttable presumption that the easement had been enjoyed as of right and, in particular, without permission; and

2. The servient owner could then try to rebut that presumption by adducing evidence that there had been permission or that the use was contentious. If the servient owner did adduce such evidence, the court would then decide on the evidence whether the presumption had been rebutted.

Does this presumption make sense?

If the claimant of a potential easement had to prove that the use was without permission then, without the benefit of the evidential presumption, the claimant would have to call evidence to disprove:

1. the existence of an express permission at any time during the period of use;

2. the existence of any facts from which a permission could be implied during the same period.

As a claimant would often be unable to prove these matters, particularly during the time the dominant land was owned by a predecessor in title, the existence of this evidential presumption seems to make (at least) practical sense.

Conclusion: owners of servient land take notice

This case clarifies that, provided a claimant can evidence the use in the requisite manner for the relevant time period, a claimant will benefit from an evidential presumption that they had enjoyed the easement as of right. A claimant does not have to prove a negative, so owners of servient land who are seeking to object to a claim of prescriptive right should take note. If the presumption applies, it is up to them to try to rebut that presumption through evidence.