Trowers' property litigation weekly update


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This week we look at a recent case that acts as a useful reminder on the rules relating to acquiring rights by prescription. We also cover an enfranchisement case concerning development value, together with our usual dose of positive news, quiz questions and insights from around the firm.

Yes, you may use my driveway!

Judgment was recently handed down in Von Hogersthal v Boyan [2022], a case involving a claim to a right of way by prescription relating to the use of a driveway to access a gate in the Claimant's fence.

The Claimant is the owner of 319 Footscray Road. The Defendant owns 319A Footscray Road, a property set back from the road and accessed via a driveway owned by 319A but which runs down the side of 319. A fence runs along the garden of 319, down the side of the driveway, and within that fence there is a gate.

It is the use of the driveway by the owners of 319 to access and exit the gate which was the subject of dispute; the Defendant had, in 2017, blocked the gate with bricks to prevent Claimant from using the gate, and therefore the driveway. However, the Claimant alleged a prescriptive easement had arisen, relying on their predecessors-in-title's use of the driveway.

The judgment sets out a useful reminder of the rules for acquiring a right by prescription, namely that the claimant has to show enjoyment of the right for a period of at least 20 years and that such use must be (a) peaceable, i.e. not by force or violence, (b) open, i.e. not in secret, and (c) not with the consent or licence of the owner of the land in question. The case ultimately turned on whether the Claimant's predecessor-in-title had been using the gate/driveway with the permission of the Defendant's predecessor-in-title.

The evidence was mixed, and the key oral evidence given on the point was that a different neighbour, Mrs Stevens, following a conversation with the Defendant's predecessor-in-title "had the impression that he had agreed that his neighbour could use the gate as it was easier to agree to this rather than to challenge his neighbour". In cross-examination, Mrs Stevens stated that the Defendant's predecessor-in-title had said words to the effect "we just allow it because we don’t want to fall out with the neighbours". The question that arose was whether this was enough to show there had been an agreement to use the gate/driveway or whether it was mere acquiescence by the Defendant's predecessor-in-title, which would not have reached the bar of the use being with consent.

During the Claimant's cross-examination, it came to light that there were three documents which had not been disclosed from the conveyancing file for the sale of 319 to the Claimant. The Claimant (acting as a litigant in person throughout the proceedings, save for instructing counsel on direct access for the trial) alleged the documents had been withheld because he believed them to be legally privileged however the judge found that the Claimant had in fact intentionally withheld them because they did not assist his case. The key undisclosed document was an email between the Claimant's conveyancing solicitor and the vendor's solicitor which stated "…I believe that you will be unable to obtain indemnity insurance, given that the use of the neighbour's side access is done with her knowledge and express consent…" This, taken together with the other conveyancing documents, led to the conclusion that there had been an express agreement, albeit oral rather than written, permitting the previous owners of 319 to use the driveway to access and exit the gate. As such, the use was with consent meaning the Claimant had not acquired a right of way by prescription.

This case is not only a helpful reminder of the principles relating to easements and the law of prescription, but also a clear warning as to the strict disclosure obligations on parties to proceedings, even where parties are unrepresented.

Enfranchisement and development opportunity

Landlords often want to expand their property assets by building more flats on a site or block. An obvious opportunity for this is usually a roof top development. Where leaseholders are seeking to purchase the freehold during or prior to the time of a such a development, the question of compensating the landlord for that loss of development value is often a key question and was the issue before the Upper Tribunal (Lands Chamber) in the case of Vectis Property Co Ltd v Cambrai Court Management Co Ltd [2022] UKUT 42 (LC) [2022] H.L.R. 40.

In this case, the landlord had obtained planning permission to build two flats on the building's roof. The leaseholders claiming enfranchisement sought to limit the value of the freehold by arguing that the lease terms restricted development. In particular, the leaseholders argued that: (i) the lease did not expressly allow for the landlord to develop; (ii) the obligation to maintain the roof could not be performed if the development was carried out; and (iii) the lease created a letting scheme limiting the number of flats.

The Upper Tribunal held that these factors were not limiting on development. A lease need not include an express right to develop the building in order to do so. As to the obligation to maintain the roof, this applied to whatever form the element took at the time, which would apply to any new roof built in place of the old. In regard to the letting scheme argument, the lease did not restrict the building to a certain number of flats or preclude development, and with new tenants being party to the scheme this could not limit development. Accordingly, the Upper Tribunal found in the landlord's favour.

Leaseholders will often make an enfranchisement claim to stop a landlord's development. However, it is important for leaseholders to consider that development hope value may be factored into the purchase price on enfranchisement of a freehold if the development opportunity can be established.

If you have any questions about enfranchisement or would like more information please contact our specialist William Bethune.

Is the Landlord and Tenant Act 1954 still fit for purpose?

This is the question that the Property Litigation Association's Law Reform Committee will be grappling with over the coming year. They will consider what works and what doesn’t; whether the 1954 Act should be kept, should be tweaked or even abolished and replaced entirely.

A consultation will be launched by the PLA law reform committee which Trowers & Hamlins LLP will be keen to respond to. Before then, we would love to hear your thoughts on the 1954 Act, your comments on its benefits or weaknesses and any experiences which might help guide our response to the consultation.

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