Access easements: ancient law, modern problems, lost modern grant

Summary

The upper tribunal (“UT”)* has upheld a vicar’s right of vehicular access to a church over neighbouring land under the doctrine of lost modern grant (“LMG”). It is an important reminder that if a landowner does something for 20 years without secrecy, force or permission, then it may acquire an easement. Under LMG, this applies whenever the 20 years use occurred, and even if the use has long since ceased. Easements of this nature are not always evident on title or from inspection. To mitigate risk in property purchases, professionals should ensure that enquiries and inspections are thorough to stand a chance of identifying such rights. And property owners should diligently monitor use of land to prevent rights arising in the first place.

Facts and FTT decision

In the sleepy village of Saul, the Vicar of St James Church and his guests historically accessed the church grounds without permission by driving on a track over neighbouring land. That use stopped in 2015, when Mr and Mrs Hughes purchased the neighbouring land. Undeterred by the Hughes attempts to regulate use, the Vicar applied to Land Registry in 2018 to register an easement of access by LMG. This was disputed by the Hughes. The first-tier tribunal (“FTT”) heard evidence from members of the congregation and men of the cloth which established that the track had historically been used for well in excess of 20 years and found that there was a right of access under the doctrine of LMG. The Hughes appealed to the UT.

The law and the UT decision

In the UT, Judge Elizabeth Cooke aptly described the law of prescription as a “jungle”, and set the scene as follows: “There are three ways to claim an easement by prescription in the law of England and Wales. A claimant may establish use from “time immemorial”, that is from the limit of legal memory in 1189; or the claimant may meet the requirements set out in the Prescription Act 1832; or the claimant may satisfy the requirements of the doctrine of lost modern grant”.</p">

Because the access had not been exercised since 1189 (not least because cars had yet to be invented), and because the unconsented use had ceased in 2015, only LMG was available. LMG is unique, because it allows a freehold owner to claim an easement if a right has been exercised for any 20-year period, if without secrecy, force or permission.

The Hughes’ grounds of appeal were that the use was only occasional and therefore not frequent enough, and that the use was not enough to show a reasonable person that a continuous right was being asserted. Both grounds were rejected by the UT. The evidence showed that the access was on a weekly basis, and the access right by LMG was upheld.

Significance

LMG remains a relevant issue for property professionals and emphasises the need for diligence in monitoring and managing property to prevent easements arising, and thoroughness when assessing a site for purchase. Professionals should carefully inspect sites for evidence of unregulated use and raise detailed enquiries regarding historical use of the subject land.

* Hughes and another v Incumbent of the benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne and Framilode [2021] UKUT 184 (LC)