Rights of way by prescription must be claimed by and against freehold interests in land. The rule is easy to apply where a tenant claims prescriptive rights over adjoining land. If the tenant’s use qualifies, the prescriptive rights attach to the freehold interest but the tenant can continue to enjoy them while its tenancy lasts.
Estate of Llewellyn (deceased) v Lorey [2011] EWCA Civ 37; [2011] PLSCS 39 is a reminder that the position is more complicated where a landowner asserts prescriptive rights over land that is let to a tenant. In these circumstances, the courts will ask what the owner of the servient land knew before the date of the grant of the lease: see Pugh v Savage (1970) 213 EG 1535.
Rights of way by prescription must be claimed by and against freehold interests in land. The rule is easy to apply where a tenant claims prescriptive rights over adjoining land. If the tenant’s use qualifies, the prescriptive rights attach to the freehold interest but the tenant can continue to enjoy them while its tenancy lasts.
Estate of Llewellyn (deceased) v Lorey [2011] EWCA Civ 37; [2011] PLSCS 39 is a reminder that the position is more complicated where a landowner asserts prescriptive rights over land that is let to a tenant. In these circumstances, the courts will ask what the owner of the servient land knew before the date of the grant of the lease: see Pugh v Savage (1970) 213 EG 1535.
In cases where the user began before the lease was granted and the freeholder knew or ought to have known about it, time will continue to run against the freeholder even if it cannot prevent the user from continuing because it has granted a tenancy on terms that prevent it from doing so.
If the landowner was ignorant of the use that was being made of its land before the grant of the lease, or the user began after the lease was granted, the courts will ask what the landowner knew about the user during the term of the lease, when it became aware of that use, and whether it could have prevented it.
In this last respect, the terms of the tenant’s lease are important. A landlord that can prevent a trespass from continuing and fails to act on actual or imputed knowledge that an adjoining landowner is using its property for access, runs the risk that its freehold investment will become subject to prescriptive rights of way: Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738; [2007] 1 EGLR 10; [2007] 07 EG 144.
The application of these rules in Estate of Llewellyn enabled the defendants to defeat a claim to prescriptive rights over a private roadway. The fact that the servient land was occupied by tenants at key times was fatal to the claim.
The claimants had been granted legal rights of way for agricultural purposes but wanted to put part of their land to a commercial use. They claimed to have acquired additional prescriptive rights of way because the land in question had been used for commercial purposes since 1931.
The Court of Appeal noted that commercial use had begun while the servient land was tenanted. The tenancy expired in 1954, when use of the roadway had become too intermittent to start time running to establish an easement by prescription.
The roadway was brought back into continuous use in the 1980s, but, by then, the servient tenement had been let to another tenant, and there was no evidence that the freeholders knew or had been informed of the use that the claimants were making of their roadway. Consequently, the claimants were unable to show that they had acquired prescriptive vehicular rights of way for commercial purposes.
Allyson Colby is a property law consultant
