Orme v Lyon – Doctrine of Lost Modern Grant13 March, 2013
This case does not establish any new legal principles. However, it highlights some important issues for landowners to be aware of with regard to rights of way.
The Ormes were appealing a decision made by the Adjudicator to the Land Registry that the Lyon’s property had the benefit of a vehicular right of way along a track passing through the Orme’s land, based on the doctrine of lost modern grant.
The doctrine of lost modern grant is a well established legal principle and essentially states that an easement will be presumed from long use (20 years will normally be enough), if the continuity use is of such character, degree and frequency to convey to a reasonable person in the position of the burdened land owner, the fact that a right is being asserted.
What constitutes ‘continuity of use’ is a matter of fact in each case and in this case it was held that the Lyon’s use was continuous enough to establish a right of way even though they only used the track on odd occasions for the later part of the 20 year period and they only used the track when their main route out of their property was blocked. There was no requirement that the Lyons must be using the track every week or month and their sporadic use of the track did not prevent a right of way being acquired.
Furthermore, in this case the adjudicator and the judge agreed that the physical attributes of the track were a factor that could be taken into account as further evidence that the Ormes would have known that the Lyons were using the track as of right. The court noted the fact that the track was ‘open at both ends..the width of typical country lanes…bordered on both sides by hedges and it has and had as the aerial photographs show wheel tracks or ruts along its length’.
This case also confirmed the court’s reluctance to overturn decisions of Adjudicators to the Land Registry, the judge in this case stating ‘I recognise not only the Adjudicator’s expertise..but also that his decision is rooted in fact and that he was better placed than I am to assess factual questions. He saw the witnesses. He visited the site.’
Consequently, landowners should keep a close eye on their land for signs of any unauthorised use by others, be wary of anyone crossing their land and think twice before incurring the costs of appealing a decision of the Adjudicator to the Land Registry.
Reviewed in 2015