A freeholder can, in certain circumstances, acquire rights over neighbouring land through long use but the position has remained unclear where the land is subject to a lease. In a recent case the Court of Appeal issued guidelines to be applied in determining whether rights can be claimed where the land is let to a tenant.
1. Where the exercise of the rights began after a lease has been granted, the courts should consider whether the landowner could have taken steps to prevent those rights from being exercised.
The terms of the lease are likely to be relevant in determining this question. If the owner could have taken steps to prevent third party rights being exercised over his land and he knew or ought to have known about those rights, a court is likely to decide that he consented.
2. Where rights have been exercised over land before a lease was granted, the courts should consider whether the landowner knew or ought to have known about the use of his land by a third party before or at the date of the grant of the lease. If knowledge is established, a court is likely to determine that he consented to third party rights over his land.
Williams v Sandy Lane (Chester) Ltd .