A recent case has shown that historic use by former owners can be used to claim a legal right of way, even where the claimant cannot prove that the use was without permission.

The extent of the right of way will be limited to the nature of the historic use.

Facts and the doctrine of lost modern grant

In Welford v Graham, the owners of a workshop applied to register a right of way over an adjoining yard. The right of way was not in use at that point and the application was based on use of the yard by former owners of the workshop between the 1960s and 2012. Both the workshop and yard had changed hands a number of times but evidence of the use was provided by some of the former owners.

The application was based on the doctrine of lost modern grant. This is one means of acquiring a prescriptive easement. It operates on the presumption that if an easement has been exercised for at least 20 years with no other lawful explanation, there is a deed of grant of that easement which has been lost. Critically, the easement does not need to be exercised currently, so long as the period of 20 years usage can be proved.

As with any prescriptive right, it has to be shown that the right was used 'as of right' which means without permission, openly and without force.

The owners of the yard objected to registration of the right of way and so the application was referred to the First Tier Tribunal (Property Chamber).

The tribunal held that although the owners of the workshop could prove over 20 years of use, they could only provide evidence of that use, without permission, for 10 years. There was simply not enough evidence as to whether permission had been given at other times. The judge also found that any right of way would be limited to access to the workshop, and the loading and unloading of materials for the purpose of a single joinery business.

The workshop owners appealed to the Upper Tribunal (Tax and Chancery Chamber)

The decision

It is for a claimant to show that a legal right of way has arisen but the Upper Tribunal held that where there has been obvious use of a right for 20 years, it will be presumed to be 'as of right'. The owner of the land affected by the right must prove that the use was with permission or contentious in order to rebut this presumption.

The judge considered that without this presumption, the claimant would have to show that there was no express or implied permission, and no dispute or contrary intention, during the whole period of use. That would sometimes be impossible, especially where use is by a former owner, or over a considerable period of time.

The owners of the workshop had proved open and uninterrupted use for a sufficient period of time. They were entitled to registration of a right of way over the yard, as the owners of the yard had not been able to show that the presumption that the use was 'as of right' had been rebutted.

However, as with any prescriptive right, the right established was limited to its original use, and the entry that will be included on title to the workshop at HM Land Registry is:

'The extent of this right, having been acquired by prescription, may be limited by the nature of the user from which it has arisen which was use for the purposes of access to and egress from the dominant tenement when being used as a joinery workshop'.

Conclusion

The claimant succeeded in establishing a right of way over the adjoining property but any radical change in character of the workshop, or substantial change in the burden of the right of way on the yard may result in the right being lost.

This case will be of interest to anyone wishing to claim a right of way based on historic use, where it may be hard to obtain evidence of the precise nature of that use.