In Hughes v Incumbent of the Benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne and Framilode [2021] UKUT 184 (LC); [2021] PLSCS 143 the Upper Tribunal (Lands Chamber) has considered the doctrine of lost modern grant.
In 2018 the incumbent applied to the Land Registry for registration of a vehicular right of way, over a track providing access to the neighbouring property – a former school and now a home (the school site) – for the benefit of the church. Until 2012 the school site was held on trust by the incumbent and churchwardens although the school closed in 2001. In 2011 the incumbent registered the school site and the track in a single title. It was sold in 2012 and Darren and Vanessa Hughes acquired it in 2015. They objected to the registration and the matter was referred to the First-tier Tribunal.
The incumbent claimed a prescriptive easement based on the doctrine of lost modern grant, a legal fiction that where there has been upwards of 20 years’ uninterrupted enjoyment of an easement which otherwise satisfies the requirements of prescription, a grant of such an easement was in fact made. The FTT heard evidence that the track had been regularly used by successive incumbents and their visitors – visiting ministers, people tending graves and the funeral director – for more than 20 years for vehicular access from the highway to a grassy area owned by the church where vehicles parked to gain access to the church and churchyard. The FTT found for the incumbent and directed the registration of the easement.
The appellants argued that the FTT’s finding that the incumbent’s use of the track was occasional was insufficient to establish a right of way by lost modern grant. The use claimed must be of sufficient intensity or frequency to indicate to the owner of the servient tenement that a right is being asserted (Gale on Easements, 21st ed, para 4-169). The UT, dismissing the appeal, found that the requirement that the use relied on was more than “occasional” was not absolute. Weekly use might be regarded as occasional in some contexts and frequent in others. The point of the requirement was not to impose an arbitrary standard of frequency but to require sufficient use to put the servient owner on notice that a right is being asserted and they need to take action. The FTT had found that the use of the track by the incumbent and their visitors was sufficient.
The appellants argued – in the alternative – that there was insufficient use to put their predecessors in title, as servient owner, on notice that a right was being asserted against them. The UT decided that this was irrelevant because the FTT had determined that 20 years’ use had been completed before 2012 and so prescription was completed before the sale of the school site. The fact that the incumbent had not granted an express easement prior to the sale was no bar to a claim for a prescriptive easement prior to that date.
Louise Clark is a property law consultant and mediator
