A recent case in the Upper Tribunal, Welford and others v Graham and another [2017] UKUT 297 (TCC), provides a helpful clarification on what those claiming the benefit of prescriptive rights must do to show that they have enjoyed an easement as of right.

The Facts

The dispute concerned a claim to a right of way over a yard, with or without vehicles, to gain access to and from a building formerly used as a workshop. The Welfords acquired the workshop in 2012. The Grahams acquired the adjacent yard in the same year.

The Welfords applied to register the right of way at HM Land Registry. The Grahams objected to the application for the registration of the easement.

The application was referred to the First Tier Tribunal where the Welfords argued that previous owners of the workshop had acquired the benefit of the right of way by prescription. 

The Welfords’ application failed and they appealed to the Upper Tribunal on a number of grounds, primarily that the First Tier Tribunal was wrong in relation to the burden of proof as regards the presence or absence of permission for the use of the yard.    

The Law

An easement is a right over another’s land, such as a right of way in this case. Prescription, or long user, is one way by which easements can be acquired. 

There are three methods for the acquisition of easements by prescription:

1.the rules at common law;

2.the doctrine of lost modern grant;

3.under the Prescription Act 1832.

Common law prescription is the oldest method but the use claimed in this case was too recent for it to be relevant.

Common to both the doctrine of lost modern grant and the Prescription Act 1832 are the following requirements:

1.the relevant use was for at least 20 years; and

2.the use was ‘as of right’ (i.e. openly, without force and without permission).

The Prescription Act 1832 requires the 20 years’ use to be the 20 years up until the time that the dispute arose, which did not apply in this case as the yard had ceased to be used for access some years earlier.

This case relied on the doctrine of lost modern grant, requiring continuous use of the yard for accessing the workshop for a period of 20 years, openly, without force and without permission. 

It is for the party claiming to have acquired an easement by prescription to prove that the use was ‘as of right’.

The First Tier Tribunal accepted the evidence that there had been use of the yard with vehicles to gain access to and from the workshop for at least 20 years. This use had been made openly and without force. But, save for a 10 year period from 1978 to 1988, there was no evidence either way as to whether the yard had been used without permission. Accordingly, a prescriptive use was not shown for a 20 year period and so the Welfords failed to establish a right of way by prescription.

The Decision

The First Tier Tribunal was correct in holding that the Welfords bore the burden of proving that the use of the right of way was ‘as of right’. This is the legal burden of proof, established by case law.

It is not to be confused with the burden of calling evidence on the question of the presence or absence of permission for the use of the yard. This would require the Welfords to provide evidence to disprove the existence of an express or an implied permission for that use at any time during the period of qualifying use. A claimant would often be unable to do this, particularly where there were previous owners of the land. 

The Welfords argued that there was an evidential presumption. If the alleged easement was used for the necessary period of time in the manner required (i.e. openly and in a manner as would reasonably be regarded that a right was being asserted) then there was a rebuttable presumption that the easement has been enjoyed ‘as of right’. It was then for the Grahams to adduce evidence that there had been permission or that the use was contentious, to disprove that presumption. If the Grahams adduced evidence to rebut the presumption then it would be for the Tribunal to decide whether that evidence rebutted the presumption. As the Grahams did not call any evidence to rebut the presumption, the First Tier Tribunal should have held that the Welfords had discharged their legal burden.

The Upper Tribunal allowed the Welfords’ appeal and directed HM Land Registry to give effect to their application to register the vehicular right of way over the yard. The Welfords had provided evidence establishing that the yard had been used openly and without interruption for a sufficient period of time. They had the benefit of an evidential presumption that the use was ‘as of right’. The absence of an evidential presumption would make little sense; its existence was supported by the authorities and made good sense. The Grahams did not adduce evidence to rebut the presumption; the Welfords had discharged their legal burden.  

Practice Points

  • The decision is not binding precedent, but is still helpful, highlighting the extent to which the evidential presumption may be used to help claimants of prescriptive easements discharge their legal burden of proof.
  • If you are defending a claim for prescriptive rights, care must be taken to ensure you can call evidence to support your contention that the right in question was, for example, with permission or contentious, so that you can try to rebut the evidential presumption.
  • Remember that claims for prescriptive easements are not restricted to the current period of ownership but often rely on predecessors in title and lengthy time periods. 

Welford and others v Graham and another [2017] UKUT 297 (TCC)