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Decision notes |
[2025] UKFTT 00836 (PC)
A’s application to note the benefit and burden of a right of way on foot over an alleyway forming part of R’s title was successful.
A's application was made on two bases, the first of which was prescription under the 1832 Act or lost modern grant. This failed on the evidence. A had to rely on evidence prior to his acquisition of ownership in 2006. The Tribunal was not satisfied that such evidence as there was of pre-2006 use was of sufficient frequency and regularity to bring to the attention of the servient owner that a right was being asserted.
A succeeded, however, on the basis of issue estoppel arising from a 2010 County Court order, in proceedings between A and predecessors of R, in which amongst other relief a declaration had been made in a summary or default judgment (later subject to an unsuccessful application to set it aside) that A was “entitled to use” the passageway. On such evidence of these proceedings as there was, this was a judicial determination on the merits of an issue fundamental to the cause of action in those proceedings. It would be capable of binding R as a successor in title and privy in estate of the then defendants, subject to the priority requirements of section 29 and Schedule 3 LRA 2002.
R had been bound by the right as an overriding interest, under Schedule 3 paragraph 3 LRA 2002, on their purchase of their property in 2021. Although they did not have “actual knowledge” of the right or the court order, and the right would not have been “obvious on a reasonably careful inspection of the land”, it was found that A had in fact exercised the right on more than one occasion in the period of 12 months prior to the transfer to R.
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