Two cases, conflicting outcomes
There are a number of ways to acquire an easement by prescription, but both of the following cases featured claims under the doctrine known as ‘lost modern grant’, which requires the user of the access to demonstrate their continuous use for any period of 20 years without force, and without consent. Unfortunately, demonstrating this kind of use isn’t always as straightforward as it sounds.
The burden of proof
In the case of Welford v Graham, the Welfords were making an application to the Land Registry for a claimed right of way, and had no problem demonstrating that the access had been used from the early 60s until 2014. Not only that, but they bolstered their case with testimony from someone who had owned the access between 1978 and 1988, who confirmed that they had never given permission for the use of the access during that time.
However, it seemed that, rather than support their case, this testimony had the opposite effect by highlighting that there was no such testimony for any other period. As such, the judge ruled that only 10 years of use without consent had been shown, and the application failed.
But this decision was subsequently overturned by the Upper Tribunal. The judge ruled that, as more than 20 years of use had been demonstrated, as well as a lack of consent for 10 years, the burden of proof fell on the Grahams to demonstrate that consent had been provided after 1988. In the absence of such proof, it was reasonable to presume that use had been ‘as of right’, and the application was permitted.
A matter of consent
In the case of Wilson v Bowe, however, there was no question that consent had been provided. The Wilsons admitted that Mrs Bowe had offered oral consent to use the right of way. But they claimed that Mrs Bowe’s consent was unsolicited, and therefore immaterial, and that the use had radically changed beyond the parameters of her consent, making it again ‘as of right’ i.e. without force or consent.
But the judge ruled that unsolicited consent was nonetheless consent, and also ruled that the Wilsons had failed to demonstrate the use had radically changed. As such, the Wilsons were unable to meet the requirements for a prescriptive easement, and their application was rejected.
Protection
These cases go to show that demonstrating sufficient use ‘as of right’ isn’t as simple as it might seem on the surface. And with so many property titles with insufficient or no legal grant of rights of way for access gained over third party land, it’s no mystery why we receive so many enquiries for Access legal indemnity policies to provide cover in the event of a future dispute.
Should such a dispute arise and our insured can provide evidence of prescriptive rights, we can offer them the reassurance that any costs involved in defending those rights will be borne by the policy. Those costs might involve defending the insured’s deemed rights, including if a dispute escalates to court proceedings, or formally documenting the rights if mutually agreed.
And if there is insufficient evidence of prescriptive rights, we would attempt to negotiate a grant of formal rights with the access owner. Our claims team have a strong track record of securing such grants, and any payments required to secure them would naturally be covered by the policy.
But, if it simply isn’t possible to secure the necessary rights for the insured, we can still cover the costs of creating alternative routes, or, if no other options are available, any resulting reduction in the value of the property without the benefit of the access.
To find out more about how Isis can protect your clients, contact one of our expert underwriters on 01603 761515 or underwriters@isisconveyancing.co.uk. You can also obtain a quote online via ICON.