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Decision notes |
[2025] UKFTT 00839 (PC)
An application to cancel the registration of the benefit of an express right of way in favour of A’s property, over an unmade road of which parts fell within the Rs’ titles, was successful.
The right had originally been registered on the basis of a 1947 purported express grant, but it was conceded by A prior to trial that the 1947 purported grantors did not then have title to the servient land. A was however permitted to amend their case to claim and equivalent prescriptive right arising by lost modern grant or under the Prescription Act 1832.
The prescriptive claim was, however, rejected.
It was found that, at the time of and following the 1960 construction of the dwelling house on A’s land by their late father G, he had known that the 1947 conveyance did not validly grant a right, and that he had consequently created and used an alternative access over other adjoining land then owned by him.
G had then used the disputed way, with gates to his property, between about 1972 and 1984, but this had been with the permission of its then owner. Following the death of that owner, it was further found that G had been given a fresh permission by the new owner.
Following the withdrawal of permission by the then owner in 1990, G’s continued use of the way until his death in 2013 had (save for one period between 2000 and 2008) been ‘vi’ or forcible, in that it been the subject of regular objections and correspondence from the servient owners, of which G was fully aware.
Further, G’s continued use had been ‘clam’ or secretive, in that he was found dishonestly to have deployed and argued the 1947 conveyance as the basis for his right, when he knew that it did not validly grant such a right. There had been a deliberate concealment of the legal basis for his continued use of the way, preventing challenges to the basis of that use which the servient owners could otherwise have made.
A's own use of the way since their father’s death had been in good faith, but was for not for a sufficient period to establish a prescriptive right. Their own pursuit then abandonment of a claim based on the 1947 conveyance did not warrant an indemnity costs order against them.
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