[2024] UKUT 217 (LC)

On 2 December 2020, after the erection of the picket fence but before the installation of the higher metal fence, Mr Sagier applied to HM Land Registry for the registration of a right of way said to have been acquired by long use. His case was that he and his predecessor as owners of No. 39 had used part of the drive of No. 60 on foot since 1999.

The claimed route of the way begins at what had been the gap between the end of the low metal fence and the Park railings, which since 2000 had been blocked only by the short stretch of the timber barrier put up by Barratt. From that point the claimed route crosses directly over Mrs Kaur’s front drive parallel to the Park railings before exiting onto the driveway of No. 61. No additional claim was made with respect to the drives of Nos. 61 to 64.

Mrs Kaur objected to the application and the dispute was referred to the FTT which held a hearing before issuing its decision on 16 July 2023 directing the cancellation of Mr Sagier’s application.

One puzzling feature of these proceedings should be noted. The only registered title in evidence before the FTT was that of No. 60, which referred to a Transfer of that property to Mrs Kaur and her late husband on 26 March 1999. No copy of that Transfer was in evidence and I was told that none was available; nor was the July 1999 Transfer of No. 39 to Mrs Hewitt. The property register nevertheless records that No. 60 has the benefit of rights granted by but is subject to rights reserved by that Transfer. What those rights are, and whether they include express rights of way, is unknown. These proceedings have been conducted on the assumption that no such express rights exist.