Archive for the ‘prescription’ Category

Prescriptive easements: deciding on whether user was as of right

March 30, 2021

In Poste Hotels Ltd v Cousins [2020] EWHC 582 (Ch) the court had to consider a claim to have acquired by prescription a right to park in a particular place in a private street by a person (Cousins) who had a house in the street. It mattered because Poste Hotels had a right of way over the street to the rear entrance to the hotel. The space over which the defendant claimed the car parking right was in front of the hotel entrance. Exercise of the right claimed would prevent the hotel from using the entrance.

Poste Hotels argued that there was an alternative explanation for the defendant’s parking right; this was that any member of the public could park in the street. The defendant’s use of the street for car parking was the same as any other member of the public.

Morgan J. explained how this kind of dispute should be approached:

‘Where the court is asked to choose between two explanations for the user both explanations must produce the result that the user was lawful. Where there are said to be two explanations for the user, each of them involving a lawful origin for the user, one has to ask whether both explanations are reasonably possible. If there are two reasonably possible lawful origins then the position is as stated in Gardner v Hodgson’s Kingston Brewery Company [1903] AC 229 per Lord Lindley at 239: “[i]f the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established ..” ‘ ([35])

In this case, however, there was no alternative lawful user that could account for the use of the street for car parking; the street was not a public highway so it was unlawful for members of the public to park there ([43]). In any event, the grant of an easement was, in the circumstances, the more likely explanation ([50]).

On the facts, the defendant was able to prove a prescriptive right to park in the street but not specifically in the space in front of the hotel entrance.

Michael Lower

Determining the extent of an easement by prescription

October 5, 2019


In Lynn Shellfish Ltd v Loose ([2016] UKSC 14) M had an exclusive prescriptive right to take shellfish from a stretch of foreshore on the South East coast of England. M granted a lease of this right to L.

L brought proceedings against parties he alleged were catching shellfish within the area which L claimed was subject to his lease. The dispute arose because the low water mark (marking the seaward boundary of the area subject to the prescriptive right) changed over time.

There were two aspects to the dispute:

(a) where was the line to be drawn between the area of shoreline subject to the right and the sea?


(b) whether sandbanks which had not been attached to the shore at the time that the right was acquired, but which later became attached to the shore, were subject to the prescriptive right?

Amongst other questions, the UK Supreme Court had to consider: (a) the general principles concerning the extent of a prescriptive right; and (b whether a prescriptive right could relate to a shifting area of land.

Lord Neuberger and Lord Carnwath jointly gave the main judgment.

Area covered by the right: depends on the actual use relied on

On the first question, the Supreme Court said:

‘in order to identify the nature and extent of the right obtained by prescription, one has to examine the actual use as of right upon which it is said to be based.’ ([45]).


Whether a prescriptive right can relate to a shifting area of land

The starting point is that:

‘The concept of a conveyance of, or a grant over, a shifting, or fluctuating, area of land is not offensive to any principle of property law, provided that the land in question can be ascertained at any time with reasonable precision.’ ([48])

And so such a right could be obtained by prescription ([50]).



(a) The area subject to the right varied with changes in the low water mark:

‘[it is] .. inherently very likely, indeed inevitable in terms of practical reality, that the putative Right would have been exercised over an area which was defined, or limited, by a shifting low tide mark.’ ([58])

(b) The prescriptive right did not affect the sandbanks which became attached to the foreshore. The evidence did not show that the actual use extended to those sandbanks. The public would previously have had the right to fish there and that right had been exercised ([73]).

Michael Lower


Right of way and lost modern grant

February 7, 2019


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.


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


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

Easement by prescription when licence ends

February 25, 2013

In London Tara Hotel Ltd v Kensington Close Hotels Ltd ([2011] EWCA Civ 1356, CA (Eng)) Tara and KCH were the owners of adjoining hotels. KCH’s predecessors in title had had the benefit of a licence to use a private access road on Tara’s land. This licence had ended on a change of ownership of KCH’s hotel in 1980. The question was whether KCH had acquired a right of way by prescription. The English Court of Appeal emphasised that the only questions were whether the post-1980 use was nec vi, nec clam, nec precario (peaceful, open and not based on any permission). It was common ground that the use was peaceful (no element of force was alleged).

The use was not the result of a permission. The licence had ended in 1980 and there was no evidence of a later express or implied licence.

The English Court of Appeal found the question as to whether the user was secret more difficult. Tara failed in this respect too. Lord Neuberger MR said:

’36. It was inherent in the Licence that it would determine on a change in the ownership of the KC Hotel, and that should have been (and maybe was) appreciated by Tara when the Licence was granted. When the change of ownership of the KC Hotel occurred in 1980, there was no question of any secrecy, or even of a deliberate intention to keep quiet, on the part of KCL or THF, as is shown by the fact that the change was known to junior employees at the KC Hotel. Accordingly, it appears to me that Tara’s case on clam fails for very much the same reasons as Tara’s case on precario fails.

37. Of course, whether the case is put on clam or precario, very different considerations would apply if it could have been shown that KCL or THF had deliberately concealed the change of ownership of the KC Hotel from Tara, or, a fortiori, if it could have been shown that KCL or THF had deliberately misled Tara about the change of ownership. But there is no such suggestion in this case.’

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.