Prescription, an Express Right of Way, and a Restrictive Covenant
Two adjoining plots in a coastal town: Plot A, a guesthouse, and Plot B, a warehouse. Since 2001 guests and delivery vans used a gravel driveway across Plot B to reach Plot A's rear entrance. The warehouse owner gave oral permission in 2001 but said nothing from 2006 onwards; in 2008 he gave Plot A's owner a key to the night gate. In 2010 Plot A was sold to a company; the sale deed described "a right of way for all purposes over the driveway". In 2015 Plot B was sold to a logistics firm. Its title register notes the right of way and a covenant by the original owner of Plot B "not to use Plot B for any purpose other than storage". It is now 2026. The logistics firm wants to park articulated lorries across the driveway and to block it; the guesthouse company wants to widen the driveway and run guided minibuses. The prescription period is 20 years.
1. Did Plot A acquire an easement by prescription over the driveway? Address the 2001 permission, the user from 2006, and the 2010 deed.
Read the worked answer
Prescription requires 20 years' continuous user as of right - nec vi, nec clam, nec precario. The 2001 oral permission made the use precarious, so time did not run as of right from 2001. From 2006, when permission ceased and the owner acquiesced without objection, user could be as of right; but by 2010 only four years had accrued. The 2010 deed expressly granted "a right of way for all purposes". That grant interrupts and replaces any prescriptive claim: after 2010 Plot A used under the express grant, not by prescription. The prescriptive claim therefore fails. The company instead has an express easement, legal if validly registered, equitable if not; either way it is enforceable according to its terms. If the 2010 deed were ineffective, the period from 2006 to 2026 would satisfy 20 years, but the 2008 key and the deed point strongly to a consensual arrangement.
2. Can the guesthouse company widen the driveway and use it for guided minibuses, and can the logistics firm park lorries across it?
Read the worked answer
The scope of an express right of way "for all purposes" is broad but not unlimited. It permits use that is reasonably related to the dominant tenement and does not substantially increase the burden on the servient tenement. Guided minibuses for guests are passenger traffic associated with a guesthouse and may fall within "all purposes", especially if the use is not materially greater than existing traffic. Widening the driveway is a unilateral physical alteration: the dominant owner may do only what is reasonably necessary to enjoy the right, and cannot substantially alter the servient land or increase the burden without consent. The logistics firm cannot park articulated lorries across the driveway or block it; a right of way includes a right to pass and repass, not to park or obstruct. Parking that substantially interferes is a nuisance and an excessive use. Remedies include an injunction and damages; the company should seek a declaration of the extent of the right rather than self-help.
3. Is the "storage only" covenant enforceable against the logistics firm, and by whom?
Read the worked answer
The "storage only" covenant is a restrictive covenant. At common law the burden does not run with the land, so only the original covenantor could be sued at law. In equity the burden runs if the covenant is negative, touches and concerns the servient land, was intended to bind successors, and the successor took with notice. The logistics firm's registered title notes the covenant, so it has notice; the covenant is negative and relates to the use of Plot B. The benefit must also run: it may be annexed to Plot A by the 2010 deed or by statute, or assigned with the land. If Plot A's company can show benefit, it can enforce the covenant against the logistics firm by injunction. If the benefit was not annexed or assigned, only the original covenantee or a party with the benefit can enforce; the guesthouse may then have no standing. The covenant does not enlarge the easement, and the easement does not authorise breach of the covenant.