Acquisition by prescription

A claimant could not establish a prescriptive easement as against the owner of the freehold where at all relevant times the land was either let to a tenant or in the occupation of a life tenant.

Llewellyn v Lorey concerned a dispute over whether the claimants, who had the benefit of a right of way over the defendant's land for agricultural purposes, had also acquired a prescriptive easement over the defendant's land for commercial purposes.

The claimants sought to rely on various ways in which a route to the dominant land had been used since the 1930s to establish an easement by prescription for commercial purposes. In summary, the claimants based their claim on the fact that from 1931 to 1960 the route had been used in connection with various mining activities, that until the late 1970s it had been used to extract mining waste, and then for more than 20 years from 1984, the route had been used for the purposes of a motor repair business. 

The question was whether these periods of commercial use were sufficient to give rise to a claim to a prescriptive easement.

What did the Court's decide?

The Court held that they were not. This was because for large amounts of time since the 1930s, the freehold of the land of which the route formed part had from 1930 to 1960 been subject to a settlement which created a life tenancy in favour of a life tenant, and then, from 1965 to 1992 and from 1993 to 2002, had been subject to two tenancies. As a result, during those periods it could not be said that the owners of the freehold land of which the route formed part had acquiesced in the prescriptive user, because whilst the land was either vested in the life tenant, or subject to leasehold interests the freeholders were unable legally to do anything about the user. During these periods possession and control of the land which included the route was out the hands of the freeholders. It was also found on the facts that use from the time of cessation of mining activities until the 1970s for the purposes of extracting mining waste was not sufficiently supported by the evidence. 

Practical points arising from this case

To establish a prescriptive easement either under the doctrine of lost modern grant or under the Prescription Act 1832, a claimant must show 20 years continuous as of right user. A claim under the Prescription Act requires the 20 year period of use to be immediately before the action in which the right is asserted, but the doctrine of lost modern grant relies upon a 20-year user period of any time. This is why in this case the use of the route had been tracked back to the1930s. 

However, prescriptive use needs to be enjoyed, as of right, against the freehold owner of the land over which an easement is being claimed, as such easements arise out of the acquiescence of the freeholder in the prescriptive use. Where the land over which a prescriptive easement is claimed is let to a tenant, the ability of the freeholder to do anything about third party use of the land is restricted. If the landlord does not have a right under the lease to take action to prevent the prescriptive use, the landlord cannot be said to have acquiesced in it, because he had no choice in the matter. 

Previous case law has, however, established that where the prescriptive user began before a lease of the land was granted and the freeholder knew or ought to have known about it, the 20 year period will continue to run against the freeholder, even if he is powerless to prevent the user from continuing because of the presence of the lease.

If, on the other hand, the freeholder did not know about the use before the grant of the lease, or it began after the lease was granted, the court should ask what the landowner knew about the user during the term of the lease, when he discovered it, and whether he could have done anything to prevent it. 

In this case, the Court of Appeal, applying similar principles to those outlined above, held that where the land was subject to a settlement so that it is subject to a life tenancy, then until the end of the life tenancy, the freeholder was not taken to have acquiesced.  

Emma Wilson is a Solicitor in the Michelmores Property Litigation Team. For further information on the issues raised in this article, please contact Emma at emma.wilson@michelmores.com