Archive for the ‘lost modern grant’ Category

Right of way and lost modern grant

February 7, 2019

Introduction

In Yik Wai Pong v Yick Pak Kin the Court of First Instance was asked to consider whether the plaintiff had acquired a right of way over an access road on the defendant’s land under the doctrine of lost modern grant.

Facts

The plaintiff and defendant were relatives and owned neighbouring areas of land. The plaintiff claimed to have acquired a right of way over an access road on the defendant’s land leading to the public highway.

The law

Wilson Chan J. summarised the relevant principles:

‘(1) If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land.
(2) Whether the use is “as of right” depends on the claimant showing that it had been nec vi (without force), nec clam (without stealth) and nec precario (without permission from the owner).’ (at [73])

Reasons for the failure of the claim

Failure to establish user for a 20 year period

The plaintiff lived in the UK until 2002, only visiting the property for a week or so every few years. This was not sufficient user of the road to count for this purpose. The relevant use only began in 2002 and so the twenty year period had not been completed.

User with consent

It was doubtful whether even the post 2002 use was ‘as of right’. There was an implicit permission given the family relationship between the plaintiff and defendant ([79]).

The defendant gave the plaintiff a key so that the plaintiff could use the access road. In providing this key, the defendant could be said to be giving express permission for the plaintiff to use the road ([79]).

Michael Lower

 

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Acquisition of right of way by prescription

June 19, 2013

In Cheung Yuk Ying v Lo Koon Fuk ([2013] HKEC 932, CFI) the path leading from P’s house to the public footpath crossed the land of a Tso (represented by D). P’s land was landlocked and P claimed a right of way by prescription under the doctrine of lost modern grant. This succeeded. The path over D’s land had been used as the access between P’s property and the public footpath ‘on a reasonably regular basis’ (though perhaps not continuously) since at least the 1940s. On that basis, the doctrine of lost modern grant applied ([146] – [147]). The fact that the house was in ruins between the mid 1950s and the mid 1990s did not matter since the path was still used as an access to the property (perhaps as a way of getting to a chicken farm beyond it) during that time. The fact that, for much of that time, the occupiers and owners were all likely to have been members of the Tso did not mean that the use of the path was a private privilege reserved for members of the Tso.

The court considered, and seems to have been inclined to accept, a second and independent basis on which the easement might have come into existence. There was a re-grant of all Government leases in the New Territories in 1973 (New Territories (Renewable Government Leases) Ordinance) and all Government leases in the New Territories had been extended in 1997 (New Territories Leases (Extension) Ordinance). P’s land was land-locked. The grant of the claimed right of way could be implied on the basis of necessity on the re-grant or extension of the lease of P’s land (with a corresponding reservation on the re-grant or extension of the lease of D’s land). Alternatively, the rule in Wheeldon v Burrows or section 16 of the Conveyancing and Property Ordinance could result in the implied grant of an easement based on the then existing use of the path as a means of access from P’s land to the public footpath.

Michael Lower

Redevelopment and third party rights: premature application for declaration / injunction. Avoiding acquiescence

May 14, 2012

CIP Property (AIPT) Ltd v Transport for London ([2012] EWHC 259) concerned a proposed development above Tottenham Court Road underground station in London. Aviva owned nearby property and claimed that the proposed redevelopment would infringe the rights of light to which it was entitled (as ancient lights or easements acquired under the Prescription Act 1832 or the doctrine of lost modern grant). (Note that it was decided in China Field Ltd v Appeal Tribunal (Buildings) (No 2) that the doctrine of lost modern grant applies in Hong Kong).

Aviva had asked for an acceptance by D that it had rights of light that would be affected by the development. D refused to give this acceptance but confirmed that any redevelopment would respect third party rights. Aviva sought a declaration that it had the claimed rights of light and an injunction restraining any development that would constitute an actionable interference with them. D argued that the application was premature.

The court agreed that it was premature to entertain an application for either of the remedies sought. D did not yet even own the development site. Planning permission had only just been applied for and would take years to obtain (so the details of the development work were unknown). D had given assurances that it would respect third party rights. Aviva could not claim that a failure to give the assurances it had sought amounted to an imminent threat to its claimed rights.

As for the fear that silence might result in a later finding that it had acquiesced in any development and had lost its rights:

‘It will be up to Aviva through its solicitors to ensure that the third defendant is aware at all material times of Aviva’s concerns.’ ([39]).

Owner placing advertising hoardings on a common part

November 4, 2011

Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building Mongkok Kowloon (IO) ([2011] 4 HKLRD 623, CA) concerned a mixed commercial / residential building. There was a DMC for the entire building and an owners corporation (‘the Incorporated Owners’) had been established. Two shops on the ground floor and all of the shops on the mezzanine and first floors were assigned to Gladford Ltd which organised these properties into the Hollywood Shopping Centre (‘the Shopping Centre’). A sub-DMC was set up for the Shopping Centre and Hollywood Shopping Centre Owners’ Committee Ltd was incorporated (not under the Building Management Ordinance) to manage the Shopping Centre (‘the Hollywood Corporation’).

The dispute centred on the use of a canopy which was on the external wall of the building between the ground and mezzanine floors. For some time, owners in the Shopping Centre placed box lights on the canopy. From 2000, the air space between the canopy and the underside of the second floor was used to display huge advertising boards fixed to the external walls of the Shopping Centre. In 2007, the Incorporated Owners objected to this and sought to recover the profits made by the Hollywood Corporation from these boards since they were attached to a common part. At first instance, it was held that the Hollywood Corporation had made use of a common part for the private benefit of itself. This use could not continue. It was also held, though, that the Incorporated Owners had acquiesced in the use of the boards from 2000 to 2007 and so could not recover the profits up to the end of the extant agreement which expired in 2008. There was an appeal by the Hollywood Corporation and a cross-appeal by the Incorporated Owners.

On appeal, the Hollywood Owners claimed to be able to rely on adverse possession in respect of the wall. This failed because there had not been exclusive possession for the full twelve years. They argued that the canopy and walls in question were not a common part. This failed; they had not been included in any assignment to an owner.

They sought to rely on a quasi-easement under Wheeldon v Burrows. This failed because the Hollywood Corporation was not an owner nor (unlike perhaps a corporation incorporated under the Building Management Ordinance) would it be possible to lift the corporate veil between the owners of units in the Shopping Centre and the Hollywood Corporation; hence the Hollywood Corporation had no locus standi.  In any event, there had been no evidence at the trial as to how the canopy was being used at the time of the first assignment of the various units. Without this evidence, the question could not be considered. In any event, as part of its adverse possession claim, the Hollywood Corporation had pleaded that it had not had the benefit of any easement in respect of the canopy. This pleading contradicted the claim to any type of easement or quasi-easement.

The Hollywood Corporation argued that it had an easement on the basis of the doctrine of lost modern grant (after China Field). The Court of Appeal does not seem to have been concerned at the invocation of the doctrine but pointed out that it must be the owners of units in the Shopping Centre who were claiming the easement. The doctrine applies to ‘real’ easements. Since they were also owners of the entire building, there could be no easement.

There could be no question of a permanent waiver (applying Attorney-General of Hong Kong v Fairfax) of the right to enforce the covenant not to convert common parts to private use since the Incorporated Owners did not have the power to do this. Inany event, the acquiescence had been for too short a period. They had, however, acquiesced in the breach until 2007 and could not recover the profits before 2008 when the relevant agreement expired.

Acquiesence no bar to easement by prescription

July 15, 2011

A claim to acquire an easement by prescription must be a claim to use as of right. The claim cannot succeed if the use is on the basis of a licence. The mere fact that the servient owner knew of the use and acquiesced (in the sense of not protesting or taking stops to prevent the use) does not prevent an easement being acquired by prescription.

In Mills v Silver ([1991] Ch 271 CA (Eng)) A and B were the owners of two neighbouring hill farms. Vehicular access to A’s farm was over a track on B’s land. The owner of A had used this track since the early 1950s (for more than the 20 year period necessary for a claim by prescription under the doctrine of lost modern grant). B claimed that he had acquiesced in the use and that this acquiescence (rather than the fictional grant) explained the use. This failed. Mere acquiescence (knowledge of the use and a failure to take measures to prevent it) are common features of claims based on prescription. The mere fact that the servient owner knew of the use and acquiesced (in the sense of not protesting or taking stops to prevent the use) did not prevent an easement being acquired by prescription.

The owners of the dominant tenement are entitled to keep a right of way in repair. A turned the track into a metalled road. This was improvement rather than repair and was a trespass for which A was ordered to pay damages.

When lost modern grant can’t work

July 14, 2011

The doctrine of lost modern grant doesn’t apply when the use of the alleged servient tenement is reasonably explicable on some basis other than the presumed grant. It doesn’t apply when the presumed grant would have been legally impossible.

In Smith v Brudenell-Bruce ([2002] 2 P & CR 4) S bought a cottage in 1975. From then until the date of the proceedings he used a track on D’s land from his cottage to get to a nearby forest. There was an interruption in 1998 when D’s began to object strenuously to the use. It was held that S had acquired an easement under the doctrine of lost modern grant because of his use of the track for 20 years or more prior to the interruption.

The doctrine of lost modern grant doesn’t apply when the use of the alleged servient tenement is reasonably explicable on some basis other than the presumed grant. D argued that S’s use was similar to that enjoyed by other members of the public and was explicable on the basis of the same licence afforded to the public. This argument failed. S’s use was different in kind and intensity from that enjoyed by the public.

Acquisition of right of support by prescription

July 13, 2011

An easement can be acquired by prescription by 20 years’ peaceable and uninterrupted user under the doctrine of lost modern grant. A right of support can be acquired in this way for a building that was built 20 years ago. It can also be acquired when a building is altered in such a way as to increase the pressure on the adjoining land.

Dalton v Henry Angus & Co ((1880 – 81) L.R. 6 App. Cas. 740, HL) concerned neighbouring plots of land. Each owner had built close to the boundary with the other. In 1849, the owner of one plot had erected a factory on his land in such a way as to increase the pressure on the soil of the neighbouring land. More than twenty years later, the neighbour demolished the house on his land. The accompanying excavation removed the support for the factory which fell down. It was held that the factory had acquired a right of support from the soil on the neighbour’s land and this had been infringed by the excavation works. The easement was acquired by 20 years of peaceful and uninterrupted user under the doctrine of lost modern grant.

Acquiring easements by long use: the doctrine of lost modern grant in Hong Kong

November 4, 2010

In England, it is possible to acquire easements by long usage under the common law of prescription (based on user since time immemorial), under the Prescription Act 1832 or under the doctrine of lost modern grant. The last of these is, to put it no more strongly, the most promising of the three for application in Hong Kong. Under this doctrine, use of a right for 20 years gives rise to a presumed grant. It is assumed that there has been an express grant of the easement but that it has been lost. English law, however, only allows for the acquisition of easements by prescription in the case of fee simple (freehold) land. If this limitation applies in Hong Kong then prescription would have no place here. In China Field Ltd v Appeal Tribunal (Buildings) (No 2) ([2009] HKEC 1765 (CFA)) the Court of Final Appeal held that the limitation does not apply in Hong Kong and that, therefore, it is possible to acquire easements by prescription under the doctrine of lost modern grant even when the dominant and servient tenements are leasehold. This is true even if there is a common landlord.