The acquisition of rights through long use is a familiar concept among property lawyers. The tripartite test for qualifying use, that it must be nec vi, nec clam, nec precario, is as old as the hills … almost. That the prescriptive acquisition of rights is rooted in the acquiescence of the servient owner is beyond doubt. In circumstances where use is found to be vi (by force), clam (secret or stealthy), or precario (by permission), any claim to have acquired rights through long use by operation of the doctrine of prescription will fail. The body of authority on the question of use by force or use by permission is vast. On the question of secrecy, or stealth, much less so.
“The user of an easement may be secret, either by reason of the mode in which a party enjoys it, or by reason of the nature of the easement itself”, Gale on Easements, ¶4-130. The former is regarded as relating to the exercise of a right in a manner that is not reasonably discoverable, such as use during the night, Liverpool Corp v Coghill [1918] 1 Ch 307. The latter is concerned with claims to a right of support.
Background
In a recent decision of the First Tier Tribunal, Property Chamber (Land Registration) (REF/2021/0571), Jones & Paddick v Hughes & Others [2025] UKFTT 00839 (PC), the question of use by stealth (clam) was a central feature of a claim to a right of way through long use, albeit not falling squarely within the aforementioned categories. In that case, the claimed use of the route of the way (“the Way”) dated back to the early 1960s. The dominant tenement (“the Property”) was acquired in 1947 by the owner of an adjacent property (“the Original Property”) which enjoyed a frontage onto the public highway. From the time of acquisition, access to the Property was gained through the Original Property.
The 1947 conveyance purported to include a right of way, so far as the vendors had power to grant the same, over a route that was said to be identified on a plan attached thereto. The plan with the route identified as described (in colour) was never produced, although differing black and white versions of a plan were produced by the time of trial. Even if the route was as purportedly identified in black and white, the vendors in 1947 did not own, and never had owned, the land over which the Way was situated.
By the time of the trial the owners of the Property were the grandchildren of the original purchaser. The original purchaser had transferred the Property to his son (the father of the applicants) after the son had built a residential property on the Property in the early 1960s and occupied it as his family home. In the preceding years the son, in a bid to obtain planning permission for the dwelling, had been in contact with the owner of the land over which the Way was situated seeking to acquire land for access or at least a right of way along the Way, and planning application documents made clear that the intended route of access to the Property was “under negotiation”. Documents then revealed that a negotiated access had proved impossible and improvements to the existing way between the Original Property and the Property, thus providing a route of access from the public highway, was the basis upon which planning permission was granted. The important point is that the son of the original owner, the father of the applicants in this case (“the Relevant Owner”), knew from the outset that the Property did not have the benefit of any expressly created right of way along the Way under the 1947 conveyance.
At some point around the time of, or shortly after, the construction of the dwelling on the Property, the land over which the Way was situated (“the Servient Land”) changed hands. There was good evidence that over a number of successive years, there were negotiations between the then-owner of the Servient Land and the Relevant Owner regarding a right of way or a transfer of some of the Servient Land to provide access to the Property. No land was ever transferred, nor was any right of way expressly granted, but some use of the Way was permitted (and occasionally became contentious).
In or around the mid 1980s, following the death of the owner of the Servient Land with whom the Relevant Owner had had earlier negotiations and who had permitted use of the Way by the Relevant Owner, the Servient Land changed hands. Documents suggested, and the trial judge found, that the new owners permitted some use of the Way for access to the Property. By then, the Way had become the only apparent means of access to the Property because at around the same time, the Relevant Owner had sold the Original Property, his father having passed away. In other words, by the sale of the Original Property the Relevant Owner had caused the Property to become legally landlocked.
By around 1990, the Relevant Owner’s use of the Way had become contentious, use having increased to a level and of a type that the owners of the Servient Land were not prepared to tolerate. Personal confrontations and solicitor’s correspondence ensued. The evidence that was before the Tribunal was clearly not complete and some of the correspondence and incidents that were in evidence were often some years apart. However, the common theme was that from around 1990 onwards, every time use of the Way was objected to the Relevant Owner claimed that the Property had the benefit of an expressly granted right of way under the 1947 conveyance. When pressed, the Relevant Owner produced a copy of the 1947 conveyance (minus any plan to begin with, and it is not known if any plan was ever actually produced or what it might have represented) and on each occasion, the Servient Owner(s) appear to have been dissuaded from taking matters further. That said, periodically, the Relevant Owner’s use of the Way would cause the conflict to be renewed, and a familiar pattern of confrontation and production of or reliance upon the 1947 conveyance ensued.
That pattern continued with subsequent owners of the Servient Land until the Relevant Owner’s death in 2013. In 2015 the applicants, as personal representatives of the Relevant Owner’s estate, caused a right of way based upon the 1947 conveyance to be registered upon first registration of the Property (claiming that the plan to that conveyance had been lost and relying upon statutory declarations) which one of the servient owners (the First Respondent) only discovered in 2020 (they had not been notified by HMLR due to some error), triggering an application by them to remove the entry from the Property’s title on the basis that the vendor under the 1947 conveyance did not own the Servient Land and was, therefore, not a capable grantor.
The Tribunal proceedings
The matter was referred to the First Tier Tribunal and the applicants eventually accepted that the 1947 conveyance was incapable of granting a right of way along the route of the Way and their case morphed into a claim to a prescriptive right of way based upon qualifying use dating back to the early 1960s (or at least for a full twenty year period at some time thereafter). The First Respondent was the only respondent to actively participate in the proceedings as a party thereto. The trial took place over 10 days during which the Judge heard 8 days of evidence, 2 days of submissions (which had been preceded by lengthy written submissions) and conducted an accompanied site view, culminating in a very detailed 64 page judgment.
As will be obvious from the foregoing, the Tribunal heard extensive evidence relating to claimed use. The Tribunal also had the benefit of a reasonably substantial body of written material, much of which came from the Relevant Owner’s personal papers. Ultimately, the applicants’ claim to have acquired a right of way through long use failed on the basis that until around 1990 the Relevant Owner’s use of the Way was permissive. Thereafter, it became contentious until 2013. Even if it could be said that at any time the servient owners’ objections lapsed, there would never have been a sufficient period of use to satisfy the 20 years qualifying use requirement.
‘Clam’
The key point for the purposes of this article, however, is that the Judge also found that from 1990 onwards, user was ‘clam’ on account of the Relevant Owner’s dishonesty in relying upon a conveyance to claim existence of a right which he knew the conveyance did not create. As much was clear from the well documented assertion in the planning application for the construction of a dwelling on the Property that negotiations for a route of access to the property were being conducted, a decade after the 1947 conveyance, along the route of the Way, together with other well documented attempts to persuade successive owners to part with land to provide access or to grant a formal right of way to the Property.
It was beyond doubt that the Relevant Owner knew the Property enjoyed no right of way along the Way but repeatedly claimed, when use was challenged, that it did. The Judge concluded that in response to objections to his (and his family’s and visitors’) use, the Relevant Owner “dishonestly met the objection and stalled further action … by his deployment of the 1947 conveyance, notwithstanding his knowledge … that the conveyance afforded him no legal rights”.
The Judge framed the question for the Tribunal as follows:
“The question … is whether, applying existing legal principles in respect of prescriptive easements, [the Relevant Owner’s] dishonest use of the 1947 conveyance to justify and facilitate his user of the way has the effect of rendering his use of the way under the ‘cloak’ or ‘cover’ of the 1947 conveyance, user, which is not properly to be regarded as prescriptive, because it falls within the category of ‘clam’, or secret, user which does not give rise to prescriptive rights”.
The Judge, recognising that the argument before him was a novel one, went on “there is no doubt at all that such an approach to ‘clam’ user is a long way from the norm. The usual and well understood element of secrecy attaching to ‘clam’ user is user which is out of sight of, or obscured from, the relevant servient owner. The issue has most often arisen in cases relating to rights of support in respect of buildings and to the question as to whether particular circumstances have put the servient owner on notice, or on enquiry, as to whether the putative dominant owner’s land afforded support to the building owned by the servient owner”.
The Judge was, however, satisfied that the Court of Appeal’s decision in London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 1 P & CR 13 expressly recognised the principle that ‘clam’ is not confined solely to secrecy as to use but can, in appropriate circumstances, extend to secrecy as to the user (ie the person using) the servient land. He referred to ¶81 of Roth J’s first instance decision and ¶37 of the Judgment of Lord Neuberger in the Court of Appeal, noting that in both courts it was accepted that if the change in the identity of the user of the way or of the ownership of the dominant land had been surreptitious or if steps had been taken to deliberately hide or conceal the change of identity or, a fortiori, to deliberately mislead or deceive the servient owner as to the change in user of the way then, as it was put, very different considerations would have arisen (in that case they did not).
The views of Roth J and Lord Neuberger were, as the Judge explained, founded on the dicta of Lord Selbourne LC in the seminal decision of the House of Lords in Dalton v Angus (1881) 6 App Cas 740, 802. He went on “… Lord Selbourne’s opinion was that all that was required was that the enjoyment of the support be enjoyed without deception or concealment and be so sufficiently open as to make it known that some support was being provided by the servient property. If, however, anything bearing upon the putative easement had been carried out secretly or surreptitiously, in order to hide material facts, or, if, in answer to any questions bearing upon the putative easement, information had been improperly withheld, or if the servient owner had received false or misleading information, as to the putative easement, then the ‘case would be different’ and, correspondingly, as I understand Lord Selbourne’s speech, the easement of support, which would otherwise have arisen, from long user, had matters been openly carried on without deception or concealment, would, on the grounds of ‘clam’, not come into being”.
The Judge concluded that Lord Selbourne’s dicta in Dalton v Angus, as discussed and adopted in London Tara Hotel, provided a principled basis, falling within the proper ambit of ‘clam’, upon which the issues arising out of the Relevant Owner’s dishonest deployment of the 1947 conveyance could be resolved. He said that “the principle to be applied is that a deliberate concealment of the basis upon which a potentially prescriptive use is carried on, or a deliberate deception as to the basis upon which that use is carried on, will disentitle the person who has perpetrated the deception, or concealment, from relying upon that user as establishing prescriptive rights. The rationale underlying the principle, as it seems to me, is that concealment of, or deception as to, the true basis, upon which the user is said to give rise to the prescriptive right in question has been carried on, will have had the effect of precluding the servient owner from challenging that user and bringing it to an end in the way that he would have done if the true basis of the relevant user had not been obscured and that, for that reason, it would be wrong for that user to give rise to prescriptive rights”.
Accordingly, the Judge concluded that between 1990, when the 1947conveyance was first deployed to fend off objection to his use, and 2013, when he died, the Relevant Owner’s dishonest reliance upon the 1947 conveyance as having created a legal right, which he knew it had not, rendered user ‘clam’ and was, therefore, incapable of supporting a claim to a prescriptive right.
Comment
This decision illustrates that the concept of ‘clam’ is not as narrow as it might, at first glance, appear to be. This decision expressly recognises that dishonest behaviour by someone seeking to perpetrate a deceit upon a putative servient owner so as to enable the continuation of use under a false cloak of legitimacy, upon which use a claimed right through long use will then be based, is clearly within the ambit of use that is by stealth, or ‘clam’.
That recognition is unlikely, however, to open the floodgates to any substantial number of further claims to prescriptive rights being unsuccessful on that ground. Further, given that the Relevant Owner’s dishonesty in this case was a response to objections and challenges to use, the question of force, or ‘vi’, inevitably arose as well and was, by itself, fatal to the applicants claim to a prescriptive right, irrespective of the ‘clam’ argument. That said, one could imagine circumstances where contention might not necessarily precede dishonest reliance upon an alleged legal right, thus making the significance of the ‘clam’ finding in this context an important one (a potential stand-alone vitiating factor outside the usual context in which such an argument is normally deployed).
It is likely to be unusual, however, certainly in the context of a claim to an expressly granted right of way, that the underlying documents will cause quite the uncertainty that prevailed in this case. The actual route of the right of way purportedly created by the vendor under the 1947 conveyance was never established and it is possible that the vendor, subject to the caveat that the right allegedly created was granted “only so far as the vendors had power to grant the same”, might have purported to grant a right of way along the Way (which incomplete historic correspondence demonstrated that the purchaser under that conveyance had sought), notwithstanding that the vendor did not own the Servient Land.
The lack of certainty arising out of the 1947 conveyance had been enough to dissuade earlier putative servient owners from taking further steps against the Relevant Owner beyond engaging in solicitor’s correspondence (and personal confrontations), despite their continuing belief that the 1947 conveyance did not create the right that was claimed, with the exception of one previous owner of part of the Servient Land who had accepted, having taken his own (apparently erroneous) legal advice on the 1947 conveyance, that the claimed right had been expressly created.
Despite the unusual features of this case, the decision provides a welcome interrogation of the scope of ‘clam’ and illustrates the need, when considering a prescriptive claim, not to too readily dismiss the possibility of user being ‘clam’ on account of the relatively narrow formulations of that concept that have traditionally been regarded as the ‘norm’.
Rowena Meager represented the successful First Respondent in this case.
A summary of the case can be viewed here | The full decision can be viewed here
