Mohammed Sheraz Akhtar & Ors v Mohammed Ali Khan & Ors

Prescriptive easements require at least 20 years’ uninterrupted use as of right: without force, secrecy or permission. Use exercised under a lease or licence is by right and cannot found prescription. Where two reasonably possible lawful origins for use exist, as-of-right use is not established. A clear letter of protest may make continued use contentious without personal service or legal proceedings. A landlord cannot sue in trespass during a tenant’s possession absent permanent harm to the reversion. Harassment requires oppressive and unacceptable conduct of sufficient gravity to sustain criminal liability. Injunctive relief may nevertheless be granted to prevent a real risk of continuing trespass or conflict.

The claimants owned a commercial property adjoining premises owned by the first defendant. The parties disputed historical use of the claimants’ yard and adjoining land, including vehicular access, parking and access through a former side door.

The claimants sought declarations and relief concerning a prescriptive right of way over land acquired by the first defendant. The first defendant counterclaimed for prescriptive rights to park in, and access, the yard. The claimants also claimed damages and injunctions for nuisance, trespass, assault, battery and harassment arising from the parties’ dispute and a confrontation in August 2019.

The central issues were whether the alleged use had been for 20 years as of right, whether a lease had merged with the freehold, and whether the pleaded tortious and statutory claims were proved.

1. Prescriptive easements. The claims and counterclaim for prescriptive easements were dismissed. The doctrine of lost modern grant requires at least 20 years’ uninterrupted use as of right, meaning without force, secrecy or permission. The legal burden initially rests on the claimant, although an established period of open and uninterrupted use may raise a presumption which the opposing party can rebut.
2. The claimants failed to establish a right of way over the Triangular Strip. The Vinmalpo Lease had not merged with the freehold in 1989. Applying the equitable principles summarised in BOH Limited and another v Eastern Power Networks Plc, the evidence showed an intention against merger; alternatively, merger was presumed not to have been intended because it was not in the owner’s interests. The evidence also failed to establish that the compulsory purchase in 1990 acquired the leasehold interest. Before 2013, the use was therefore by right under subsisting leasehold interests. The claim was dismissed.
3. The defendants established 20 years’ open use of the yard for parking and access, but not use as of right. Parking in the Bottom Yard was licensed by the tenant from 2006, and wider use was licensed from at least 2015. Alternatively, a clear cease-and-desist letter rendered continued use contentious from 2014. A letter of protest may suffice without personal service or legal proceedings.
4. The claims for damages in nuisance and trespass, assault, battery and harassment failed. The tenant, rather than the landlord, was normally entitled to sue in trespass before forfeiture, and no permanent harm to the reversion was proved. The evidence showed that the claimants had participated in, and in part provoked, the confrontation; the force used by D2 was reasonable and proportionate. The alleged harassment was exaggerated and did not cross the required threshold.
5. The defendants were ordered to remove the Blue Container and were restrained from trespassing on the Property for four years. Cross-injunctions prohibited direct or indirect communication except through solicitors for four years.

First-instance decision following a trial in the High Court. No appellate history was stated.