Cases - Matthews and another v Herefordshire Council

Record details

Name

Matthews and another v Herefordshire Council

Date

[2011]

Citation

EWLandRA 2010/0056

Legislation

Prescription Act 1832

Keywords

Commercial property - landlord and tenant - easements - 20 years use can create a prescriptive right

Summary

This was a decision made by the Adjudicator to the Land Registry, finding that a right of way, with or without vehicles, and for all purposes had been acquired by prescription over a common.

The decision is a useful reminder that, unlike prescription under the Prescription Act 1832, prescription under the doctrine of lost modern grant does not require the period of use to have been continuing at the time of the action brought to challenge the use. Twenty years' uninterrupted use at any point in time can create a prescriptive right, even if the use ceased many years ago.

The decision also highlights the general principle that, on subdivision of the dominant land, the benefit of an easement will pass with each and every part of it. However, the adjudicator did not discuss any limiting factors to this principle, such as whether an increase in the burden on the servient land after subdivision could negate this principle.