There are two recent and instructive cases.

Chaudhary v Yavuz [2011] EWCA Civ 1314 is the first case to explain the changed treatment of equitable easements in the Land Registration Act 2002. The issue was whether an unregistered right of way over a fire escape bound a purchaser. The right was equitable and was not protected by a notice. That would not have mattered under the Land Registration Act 1925 because an equitable easement was almost always an overriding interest by virtue of rule 258 of the Land Registration Rules 1925 (Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 and Sommer v Sweet [2005] EWCA Civ 227).

However one of the purposes of the 2002 Act was to make a legal easement the only kind of easement that can be an overriding interest. Thus a contract for an easement or an equitable easement created by an informal transaction must be protected by registration of a notice. Otherwise a purchaser will take free. The Court of Appeal rejected an argument that the dominant owner was in occupation of the fire escape and therefore had an overriding interest.

The Court also held that the mere fact that the purchaser had constructive notice of the unprotected right did not make him a constructive trustee bound to give effect to the equitable easement. The odd case of Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044 was left standing but the Court gave the broadest hint that it can be ignored. Plainly the Court has set its face against using constructive trusts as a way round the 2002 Act.

London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356 is a prescription case. In 1973 the owners of the Tara Hotel (“TH”) granted the owners of the Kensington Close Hotel (“KCH”) a written contractual licence to use a roadway. The licence was purely personal and determined when KCH was transferred to another company in 1980. No one agreed a new licence but the use continued as before, openly (nec clam) and without force (nec vi), until the parties fell out in 2007.

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TH’s first argument was that there was an implied or tacit permission after 1980 so the use was precario The Court of Appeal disagreed. Mere tolerance is not enough. There must be some positive, overt act and the overt act (which may be a non -verbal communication) must be intended to be understood, and be understood, as permission to do something which would otherwise be a trespass (see paras 43 and 86).

The second was that the conduct of KCH was not such as to bring home to the reasonable landowner that KCH was asserting a right to use the land. The Court held that there was no such requirement. All that KCH had to do was to use the land nec vi, nec clam, nec precario.

The decision is valuable as a rejection of the “tolerance means permission” heresy (see Mills v Silver [1991] Ch 271, a case in which I was counsel) and of adding new complexities to law that is already far too complicated.