While private rights of way are not in principle relevant in determining planning applications, they may throw a spanner in the works once planning
permission has been given. Applicants can protect themselves from any
uncertainty by applying to Land Registry to register a right of way. If the
owner objects, they can turn to the First Tier Tribunal (Property Chamber, Land
Registration Division). In Harepath v Care and Skill Pest Control
First Tier Tribunal (Property Chamber, Land Registration Division) 31 October
2016, REF/2015/0739 (Judge Ann McAllister), a developer applied for adverse
possession over a building extension over land which was originally part by a
neighbouring property. It applied at the same time for a right of way over a
passageway separating the two properties. The extension, which was used as an
office, was built in 1980. A doorway gave access from the office to the passageway.
The door was boarded up in 2007, just before the building was sold to the
Applicant.
Harepath applied in 2015 to register a right of way over the passageway and for title by adverse possession of the extension, based on the usage between 1980 and 2007. The
adverse possession claim was conceded by the Respondent. The right of way was,
however, contested. The application in relation to the right of way was referred to the Tribunal. The claim for a right of way was based on the ‘doctrine of lost modern grant’ which requires twenty years of use.
The Tribunal found for the applicant on the facts, but then it had to decide a very difficult legal point, which as it happens has never been looked at by any higher Court in England and Wales. Could adverse possession and prescription run at the same time? Or could they only run sequentially, so that prescription should start only after the squatter acquired full title, i.e. 1992 at the earliest? Since the applicant could only show fifteen years of usage since 1992 and not the required twenty, the question was crucial as the result.
The Respondent argued that the answer must be that they must run sequentially. Any attempt to rely on the period between 1980 and 1992 would fall foul of two of the cardinal requirements for the creation of an easement, namely that there must be a dominant and servient tenement, and that these must not be owned and occupied by the same person. In this case, the extension and the passageway were in the same ownership until, at the earliest, 1992.
No English precedent provided adequate guidance. The parties had to argue from
first principles. The only relevant precedent was a Canadian case called Walker v Russell (1966). The court had found there that adverse possession and a right of way had run at the same time against the owners of an island, for the benefit of a family that spent its
summers there for over thirty years. Adverse possession concerned a cottage and the right of way to a path which was the only access to a dock. A difficulty with the case was that the issue did not appear to have been argued at all before the court. In addition, the family of landowners had taken the matter in their own hands by burning the cottage down.
After discussing the case law in some detail, Judge McAllister took the same view as the Ontario High Court. She agreed with the Applicant that the squatter’s title was sufficiently distinct from that of the paper owner to start the process of prescription. Citing Leach v Jay (1878) the Judge concluded that Harepath's predecessors in title ‘acquired a possessory fee simple title to the extension (the dominant tenement) from the moment this was built’. It was this title which allowed the Applicant's predecessor in title ‘to begin to claim a prescriptive right to use the passageway, and clothed the disputed land with the character of the dominant tenement’. She therefore ordered that the right of way be registered.
Pavlos Eleftheriadis appeared for the Respondent.