1. This article is concerned with doctrines whereby the action or inaction of a landowner can lead to the permanent loss or acquisition of rights. Consequently, the doctrine of laches is outside its remit, as it operates simply as a personal disqualification to an equitable remedy. In so far as acquiescence has the same effect, it is also excluded; in so far as it may have a greater effect, it is covered in the doctrines discussed. The doctrine of benefit and burden must also be excluded because it simply gives rise to a personal obligation which, at least in theory, can be avoided by giving up the benefit (Rhone v Stephens (1994) AC 3 10 at 322-323). In addition, recent dicta to the effect that the doctrine can only operate where the burden or condition is relevant to the exercise of the benefit or right (Rhone v Stephens at 322) would suggest that, despite authority to the contrary, it may not be available to allow the exercise of rights over another's land.

2. The doctrine of surrender by operation of law also leads to the informal loss of rights but has not been considered here for two reasons: first, it always requires positive conduct by both parties; and, secondly, the situations in which it operates are not directly comparable with the other doctrines considered. It is undoubtedly based on estoppel by convention and operates so as to render the acts of the parties valid and effective: Doe d Biddulph v Poole (1848) 11 QB 713 at 716–717.

3. See the discussion of Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) 1 QB 133 below.

4. Since December 1990. The transactions that trigger compulsory first registration were extended by the Land Registration Act 1997.

5. See M Howard and J Hill ‘The informal creation of interests in land’ (1995) 15 LS 356 at 373–374; Law Reform Committee Fourteenth Report on the Acquisition of Easements and Profits by Prescription (Cmnd 3100, 1966) para 34. The Law Commission in its Consultative Document (Law Com 254) Land Registration for the Twenty-First Century (Cm 4027, 1998) clearly endorses this and in Part X proposes changes to the law of adverse possession and suggests that the law of prescription needs an overhaul.

6. Although in many of the cases there has also been some positive statement or acts, it is argued below (see text above n 128) that this is not the conduct that triggers the doctrines.

7. Sections 15, 17. Strictly this is not a transfer of title. The paper owner's title is extinguished. The squatter's title is then probably the best title affecting the land (and is subject to third party rights which bound the paper owner). There must also be discontinuance of possession by the landowner or his dispossession, but neither of these requirements are relevant to this article.

8. Per Slade J in Ponwell v McFarlane (1977) 38 P & CR 452 at 470–471.

9. The only expenditure was on some bulbs: Buckinghamshire Coun/y Council v Moran (1990) Ch 621, CA.

10. Red House Farms (Thorndon) Ltd v Catchpole (1977) 244 EG 295, CA.

11. Dawkins v Lord Penrhvn (1878) 4 App Cas 51 (he did not know that he was a devisee in a will); Palfrey v Palfrey (1973) 229 EG 1593. CA (there had been a secret conveyance to him of which no one knew).

12. Rains v Buxron (1880) 14 Ch D 537 (there was occupation of an underground cellar which the landowner did not know existed), referred to with approval in Powell v McFarlane (1977) 38 P & CR 452 at 480.

13. Time will not run if the adverse possession is deliberately concealed: s 32(1) of the Limitation Act 1980.

14. Law Reform Committee Twenty-first Report - Final Report on Limitation of Actions (Cmnd 6923, 1977) para 1.7; M Dockray ‘Why Do We Need Adverse Possession?’ (1985) Conv 272; R J Smith Property Law (London: Longman, 2nd edn, 1998) pp 62–64; Law Com 254 Land Registration for the Twenty-First Centuy (Cm 4027, 1998) pp 204–205.

15. Law Reform Committee Fourteenth Report on the Acquisition qf Easements and Profits by Prescription (Cmnd 3100, 1966) paras 36, 38(d).

16. See the discussion in Southern Centre of Theosophy Incorp v State of Australia (1982) AC 707.

17. Attorney General v M'Carrhy (1911) 2 IR 260; Southern Centre of Theosophy Incorp v State of Australia (1982) AC 707.

18. The rules will clearly apply regardless of whether the landowner could have done anything to stop the changes and are in no way reliant on the new owner having spent money or otherwise acted to his detriment.

19. Southern Centre of Theosophy Inc v State of South Austroliu (1982) AC 706 at 717–718. There is support for this in the fact that the rules can be excluded, but only, seemingly, where it is clear that it is a particular area of land, rather than land with a water boundary, that was acquired.

20. Southern Centre of Theosophy Inc v State of South Australia (1982) AC 706 at 716.

21. See the discussion of the authorities in P Jackson ‘Alluvio and the Common Law’ (1983) 99 LQR 412 at 412–417.

22. Occasionally the claimant has simply been protected in his enjoyment of the land without being granted a proprietary right: eg Inwards v Baker (1965) 2 QB 379.

23. The requirement of knowledge is most often emphasised in cases of inaction, such as Willmott v Barber (1880) 15 Ch D 96 at 105–106, but is also to be found in other cases.

24. (1982) 1 QB 133 at 147, 151–152.

25. Eg Lloyds Bunk plc v Carrick (1996) 4 All ER 630.

26. Eg Mutharu v Mutharu (1994) 26 HLR 648, in which the Court of Appeal required satisfaction of all of the requirements in Willmott v Barber, even though it was a case of encouragement, not pure inaction, although there was flexibility shown in finding the requirements satisfied. See also Taylor v Dickens (1998) 1 FLR 806 at 820, in which it was said that there is no equitable jurisdiction simply where it would be unfair or unconscionable. See the caustic criticism by M P Thompson (1998) Conv 210.

27. Hopgood v Brown (1955) 1 WLR 213 (there might have been constructive knowledge on the facts); E R Ives Investments Lid v High (1967) 2 QB 379; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) 1 QB 133. In Hopgood and Taylors Fashions the landowner encouraged the belief as well; in Ives Investments the only positive conduct was encouragement of the expenditure.

28. Eg J T Developments Ltd v Quinn (1991) 62 P & CR 33 (created belief); Crabb v Arun DC (1976) Ch 179, CA (encouraged belief).

29. Per Carnwath J in Gillett v Holr (1998) 3 All ER 917 at 929.

30. Swallow Securities Ltd v Isenbrrg (1985) 1 EGLR 132; Barclays Bank plc v Znroovahli (1997) 2 WLR 729 at 738. See also the earlier case of Dann v Spurrier (1802) 7 Ves 231. These are all cases of total inaction on the part of the landowner, but this is arguably because it would be difficult to show absence of such knowledge where there has been some positive conduct.

31. There are dicta that it is essential eg Brinnand v Ewms (1987) 19 HLR 4I5 at 41 8, CA.

32. Eg Matharu v Matharu (1994) 26 HLR 648 at 657.

33. Such as building or substantial expenditure on the landowner's property or building on neighbouring land where a right over the landowner's property is obviously necessary for the enjoyment of what is being built (where it is not obviously needed, the doctrine has been held inapplicable: Bankart v Tennant (1870) LR 10 Eq 141) or a sale by the claimant of his own property in circumstances that clearly indicated that he expected rights (Worboys v Curter (1987) 283 EG 307, CA). The inference from the acts of the claimant may be negatived by other actions by him: Rochdale Canal Co v King (1853) 16 Beav 630 (a request for more limited rights).

34. Gross v French (1976) 238 EG 39; E & L Berg Homes Ltd v Grey (1980) 253 EG 473 at 479; Brinnand v Ewens (1987) 19 HLR 415.

35. Ward v Gold (1969) 211 EG 155 at 161; Armstrong v Sheppard & Short Lrd (1959) 2 QB 384 at 396, CA (when asked, the landowner said he had no objections to proposals for construction work). See also Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) 1 QB 133 at 155–156 in which presence at the site and participation in the planning of works was held not to amount to encouragement in the particular circumstances.

36. Per Danckwerts and Winn LJ in E R Ives Investments Ltd v High (1967) 2 QB 379 at 399,404; Cf Lord Denning MR at 394. Here there was some kind of active presence while work was carried out, including at least compliments although it is not clear from the report of the case exactly what the facts were. In relation to active involvement, such as actually carrying out some of the works, the authorities seem to conflict: compare Laird v Birkenhead Railway (1859) Johns 500 at 523 with Hopgood v Brown (1955) 1 WLR 213 at 224.

37. Whereas it is arguable that the landlords in the second action in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) 1 QB 133 should have made enquiries as to the validity of the option before they encouraged the tenants to take a lease drafted on the assumption that the option was valid, it is more difficult to argue that the landowners in E R Ives Investments Ltd v High (1967) 2 QB 379 should have made enquiries before they simply complimented their neighbours on a garage they had erected.

38. They have included a failure to act (Greasley v Cooke (1980) 1 WLR 1306) and minimal expenditure (Puscoe v Turner (1979) 1 WLR 431). Contrast Can v Wood (1998) EGCS 77, CA in which expenditure of £300 was considered to be insufficient. Cf Hobhouse LJ Sledmore v Dalby (1996) 72 P & CR 196 at 207, where he says the detriment must be distinct and substantial. It is worth noting that the less substantial acts were in cases where there was positive action by the landowner. See also M Howard and J Hill ‘The informal creation of interests in land’ (1995) 15 LS 356 at 368, where it is argued that since in acquiescence cases the understanding between the parties is weak, it is to be expected that an equity will arise only if the claimant's conduct is strong.

39. Eg Appleby v Cowley (1982) Times, 14 April; Sledmore v Dalby (1996) 72 P & CR 196.

40. See Scarman LJ in Crabb v Arun DC (1976) Ch 179 at 193.

41. Eg Dodsworrh v Dodsworrh (1973) 228 EG 11 15.

42. Eg Crabb v Arun DC (1976) Ch 179; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) QB 133.

43. Eg in the case of a purchase money resulting trust based on a contribution at the time of acquisition of the property and in cases such as Hodgson v Marks (1971) Ch 892. Bannister v Bunnisrer (1948) 2 All ER 133 and Lyus v Prowsa Developments Ltd (1982) 1 WLR 1044. In all of the cases there is some positive conduct by the landowner (usually an express or implied promise on which he seeks to go back) on which another, whether the claimant or a third party, has relied and the landowner would otherwise benefit unfairly.

44. See Lord Bridge in Lloyds Bankplc v Rossett (1991) 1 AC 107 at 132.

45. Eg Eves v Eves (1975) 1 WLR 1338; Grant v Edwards (1986) Ch 638.

46. An example of failure is Midland Bank v Dobson (1986) 1 FLR 171.

47. Eg Eves v Eves (1975) I WLR 1338; Grant v Edwards (1986) Ch 638.

48. Per Mustill LJ in Grant v Edwards (1986) Ch 638.

49. Per Browne-Wilkinson V-C in Grant v Edwards (1986) Ch 638. Though maybe his suggestions go too far to be justified by the analogy with proprietary estoppel. For example, in Coombes v Smith (1986) 1 WLR 808 a claim of proprietary estoppel failed where the claimant had simply moved in with the landowner and had his children.

50. See Lord Bridge in Lloyds Bunkplc v Rosset (1991) 1 AC 107 at 133; Ivin v Bluke (1995) 1 FLR 70. Even if this is so, this is not an example of a landowner never having full beneficial ownership from the start rather than losing an interest because the size of the share claimed is not limited to the contribution made but may be increased by looking at the whole course of dealing during ownership of the property: Midland Bank plc v Cooke (1995) 4 All ER 562.

51. Evans v Hayward (1995) 2 FLR 511.

52. See Lords Pearson and Diplock in Gissing v Gissing (1971) AC 886 at 903, 905; and see Fox LJ in Burns v Burns (1984) Ch 3 17 at 329.

53. See Griffiths LJ in Bernard v Josephs (1982) Ch 391 at 404.

54. For the purposes of this article, no distinction will be drawn between the three methods of prescription, ie at common law, by lost modern grant and under the Prescription Act 1832. The actual period of use required varies with the method of prescription, and depends on the type of easement or profit being claimed. 55. Mills vSilver (1991) Ch 271, CA.

56. See Fry J, giving his opinion to the House of Lords in Dulron v Angus (1881) 6 App Cas 740 at 773–774, as approved elsewhere, eg Lord Penzance in Dalron v Angus at 803: Vaughan Williams LJ in Union Lighterage Co v London Graving Dock Co (1902) 2 Ch 557 at 565. Cf Lord Blackburn in Dalron v Angus at 817–818. See also Thesiger LJ in Sturges v Bridgman (1879) 11 Ch D 852 at 863; Oukley v Boston (1976) QB 270 at 280, 284, CA.

57. Fry J in Dalton w Angus & Co (1881) 6 App Cas 740 at 774: Morris LJ in Davies v Du Paver (1953) 1 QB 184 at 210. On the need for knowledge of the use, see Thesiger LJ in Sturges v Bridgman (1879) 11 Ch D 852 at 863 as cited with approval in many cases.

58. Knowledge will be presumed where there is enjoyment ‘of such a character that an ordinary owner of land diligent in the protection of his interests would have or must be taken to have a reasonable opportunity of becoming aware of that enjoyment’: Romer LJ in Union Lighterage Co v London Graving Dock Co (1902) 2 Ch 557 at 57 1. See the most recent reference to presumptive knowledge in Mills v Silver (1991) Ch 271 at 290, CA.

59. Davies v Du Paver (1953) 1 QB 184; Diment v N H Foot Ltd (1974) 1 WLR 1427.

60. Union Lighterage Co v London Graving Dock Co (1902) 2 Ch 551, CA (dock fixed to land by underground rods); Liverpool Corporation v H Coghill & Son Ltd (1918) 1 Ch 307 (underground discharge to sewers); Scott-Whitehead v National Coal Board (1985) 53 P & CR 263 (pollution).

61. See Parker LJ in Mills v Silver (1991) Ch 271 at 288.

62. For example, the use of a right of way six to ten times per year over 35 years has been sufficient (Diment v N H Foot Ltd (1974) 1 WLR 1427 at 1430), whereas the removing of cut timber from a wood on only three occasions with intervals of 12 years between each has not (Hollins v Verney (1884) 13 QBD 304).

63. See Lord Blackburn in Dalton v Angus (1881) 6 App Cas 740 at 817–819; Law Reform Committee Fourteenth Report on the Acquisition of Easements and Profits by Prescription (Cmnd 3 100, 1966) para 38(d) (the minority view).

64. (1879) 7 Ch D 31, CA.

65. Per Bowen LJ in Birmingham, Dudley and District Banking Co Ltd v Ross (1887) 38 Ch D 295 at 313. See Wheeldon v Burrows (1879) 7 Ch D 31 at 49.

66. Nickerson v Barraclough (1981) 1 Ch 426, CA.

67. The common intention for the use of the property may be express (Wong v Beaumont Property Trust Ltd (1965) 1 QB 173, CA) but need not be (Stafford v Lee (1992) 65 P & CR 172, CA).

68. Under the rule in Wheeldon v Burrows (1879) 7 Ch D 31. It seems from Wheeler v J J Saunders Ltd (1995) 3 WLR 466 that the right must be both continuous and apparent and necessary for the reasonable enjoyment of the land sold or leased. This seems to be endorsed by the fact that the doctrine is based on the principle of non-derogation from grant, for which it would seem to be necessary to show not only that the easement was necessary for full or proper enjoyment of the land, but also that the purchaser expected to get the right because it was used by the vendor to the purchaser's knowledge. For the requirement of ‘necessary for the reasonable enjoyment’ of the land, compare Wheeler v J J Saunders Ltd with Borman v Griffith (1930) 1 Ch 493.

69. Wheeldon v Burrows (1879) 7 Ch D 31 at 49.

70. Pwllbach Colliery Company Ltd v Woodman (1915) AC 634 at 646–647.

71. Re Webb's Lease (1951) Ch 808 at 816.

72. Wong v Beaumont Properv Trust Ltd (1965) 1 QB 173, CA.

73. See also Lord Wilberforce in Sovmots Investments Ltd v SSE (1979) AC 144 at 168 who, when discussing Wheeldon v Burrows, said that the right must be obviously necessary for the reasonable enjoyment of the land. NB in Borman v Griffith (1930) 1 Ch 493 the intended right of way had never been used before but its unsuitability was presumably discoverable.

74. The landowner had the opportunity to reserve rights to himself and this is reflected in the fact that the courts are notoriously stricter in relation to implied reservation than implied grant. However, he may not have given enough thought to what he might need.

75. See Nickerson v Barraclough (1981) 1 Ch 426 in relation to easements of necessity.

76. This section has been held to pass existing profits (White v Williunzs (1922) 1 KB 727) and there are dicta that it can create new profits from precarious rights (at 738,740). The other implication rules, discussed above, do not seem to apply to profits.

77. Wurd v Kirkland (1967) 1 Ch 194.

78. How far the operation of the section is limited to cases of diversity of occupation of the two pieces of land prior to the relevant deed is uncertain. It was held by the House of’ Lords in Sovinots Investments Ltd v SSE (1979) AC 144 that prior diversity of occupation is generally required, but there is an exception which may be limited to a right to light or may extend to all continuous and apparent easements as suggested in Long v Gowlert (1923) 2 Ch 177 at 203.

79. See L Tee ‘Metamorphoses and Section 62 of the Law of Property Act 1925’ (1998) Conv 115.

80. A rare example concerning a profit is Tehidy Mirterclls Ltd v Norman (1971) 2 QB 528, CA, in which the claim of abandonment actually failed.

81. The following discussion will refer only to easements for the sake of simplicity.

82. Buckley LJ in Gotobed v Pridniore (1971) 217 EG 759, as cited with approval in later cases.

83. (1971) 217 EG 759.

84. (1992) 66 P & CR 246.

85. At first sight, the decision in Williams v Usherwood (1983) 45 P & CR 235 seems authority otherwise, as the Court of Appeal seems to have found abandonment simply through the non-user by a householder of a shared driveway. However, although there was found to be abandonment after less than two years of non-use (compare the 175 years which was insufficient in Benn v Hardinge (1992) 66 P & CR 246), the Court of Appeal cited dicta to the effect than non-user alone is inconclusive, and the case was referred to without criticism in Benn v Hardinge. These facts all suggest that there must have been more than the non-user. There was one other factor that could have influenced the court's decision: the dominant owner had another driveway completely on his own land and he erected a garage at the end of it. However, it should be noted that whereas the court was specific about the year in which the easement was abandoned, it had no idea as to when the garage was erected. Acts in reliance clearly did not influence the court's decision: (see at 257).

86. Lawrence v Obee (1814) 3 Camp 514; Moore v Rawson (1824) 3 B & C 332.

87. Crossley & Sons Ltd v Lightowler (1867) LR 2 Ch App 478.

88. Doe d Putland v Hilder (1819) 2 B & Ald 782 at 791; Littledale J in Moore v Rawson (1824) 3 B & C 332 at 339; Alderson B in Ward v Ward (1852) 7 Exch 837 at 839; Pollock MR in Swan v Sinclair (1924) 1 Ch 254 at 266. 89. Plowman J in Obadia v Morris (1974) 232 EG 333 at 335, approving a passage in Halsbury's Laws to this effect. The dominant owner mistakenly believed that the merger of a lease and freehold put an end to his rights.

90. See Williams v Usherwood (1983) 45 P & CR 235, in which the issue was not discussed but it was clear that the dominant owner had no actual knowledge of the easement at the time it was abandoned (see at 248), whereas there was presumably constructive knowledge from the title deeds.

91. Midland Railwuy Co v Gribble (1895) 2 Ch 827, CA; Williams v Usherwood (1983) 45 P & CR 235, CA. See C J Davis ‘Abandonment of an easement: is it a question of intention only?’ (1995) Conv 29 1 at 295–296.

92. In Lawrence v Ohee (1814) 3 Camp 514 and Moore v Rawson (1824) 3 B & C 332 there was an erection of a permanent building which interfered with rights to light. In Crossley & Sons Ltd v Lighfowler (1 867) LR 2 Ch App 478 the dominant owner sold land to the servient owner for a purpose which required clean water.

93. Eg Littledale J in Moore v Rawson (1824) 3 B & C 332 at 339; Alderson B in Ward v Ward (1852) 7 Exch 837 at 839; Pollock MR in Swan v Sinclair (1924) 1 Ch 254 at 266.

94. Doe d Putland v Hilder (1819) 2 B & Ald 782 at 791.

95. Gorobed v Pridmore (1971) 217 EG 759; Cook v Mayor and Corporation of Bath (1868) LR 6 Eq 177 at 179; Snell & P rideaux Ltd v Dutton Mirrors Ltd (1995) 1 EGLR 259. To a large extent the cases are indistinguishable from those based on proprietary estoppel: see Hoffmann LJ in Snell & Prideaux Ltd v Dutton Mirrors Ltd at 264 where he referred to proprietary estoppel.

96. Eg Stuart-Smith LJ in snell & Prideaux Ltd v Dutton Mirror.7 Ltd (1995) 1 EGLR 259. 97. The Henrik Sif (1982) 1 Lloyd's Rep 456 at 465; The Stolt Loyalty (1993) 2 Lloyd's Rep 281 at 289–290; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) 1 QB 133 at 147. Cf Spiro v Lintern (1973) 1 WLR 1002, in which there was no knowledge of the true position. Arguably, there was a mistake in the judge's reasoning: he said, rightly, that there is no need for knowledge of the true position in the case of estoppel (at 1012) but then apparently forgot that he was dealing with silence and had earlier required a duty of disclosure (at 1010-1011): how can there be a duty to disclose something of which one has no knowledge? See also Evans LJ in Orion Finance Lid v J D Williams & Co Ltd 22 July, (1997, unreported), where estoppel by silence was not clearly limited to a situation where there is a duty to speak.

98. See in particular Snell & Prideaux Ltd v Dutton Mirrors Ltd (1995) 1 EGLR 259, but also Gorobed v P ridmore (1971) 217 EG 759.

99. James v Stevenson (1893) AC 162, JC; Gotobed v Pridmore (1971) 217 EG 759.

100. Gotobed v Pridmore (1971) 217 EG 759.

101. Snell & Prideaux Ltd v Dutton Mirrors Ltd (1995) 1 EGLR 259. Arguably, Swan v Sinclair (1924) 1 Ch 254, CA (affirmed (1925) AC 227 on a different ground) would thus be decided differently today. Land over which there was a right of way was raised by about 6 feet. However, the soil could have been removed and in fact would have been of use to level out the rest of the route: see the dissent by Pollock MR at 267–268.

102. Gafford v Graham (1998) 77 P & CR 73 at 80–8 I, CA.

103. Goff LJ in Shaw v Applegate (1977) 1 WLR 970 at 980.

104. (1880) 15 Ch D 96 at 105–106.

105. Shaw v Applegate (1977) 1 WLR 970 at 977–978, 980. NB This more flexible approach has only been used to justify the refusal of an injunction at the discretion of the court where there had been acquiescence for a lesser period than was usual and the covenantee lacked the required knowledge but there had been substantial expenditure by the covenantor. It has not been used to deny all remedy. The test was applied in Gafford v Graham (1998) 77 P & CR 73, although the requirements in Willmott v Barber were satisfied on the facts. Reference should also be made to the recent decision in Jones v Stones (1999) 1 WLR 1736 at 1745, in which the Court of Appeal referred to a three-stage approach: had there been action or inaction which encouraged another's belief; if so, did that cause detriment to that other person; in all the circumstances would it be unconscionable now to assert any rights?

106. Russell v Archdule (1962) 2 All ER 305 at 313; affirmed (1962) Times, 30 November.

107. A landlord will only lose a right to forfeit a lease for breach of covenant if he has acted positively, eg by accepting rent: Doe d Sheppurd v Allen (1810) 3 Taunt 78. Even then, he can still sue for damages.

108. Eustwood v Lever (1863) 33 LJ Ch 355, CA (restrictive covenant; an injunction was refused although it was not decided whether damages could be granted); Gaskin v Balls (1879) 13 Ch D 324, CA (restrictive covenant; injunction refused; damages could not be granted because of the terms of the lease but it was suggested that there could be no remedy anyway (at 329)); Gufford v Graham (1998) 77 P & CR 73 (no remedy at all for breach of restrictive covenant).

109. Mayor of London v Sundon (1872) 26 LT 86, CA (leasehold covenant); Wilrshire v Coslett (1889) 5 TLR 410 (leasehold covenant); Gufford v Graham (1998) 77 P & CR 73 (restrictive covenant).

110. Duke of Norrhumberlund v Bowman (1887) 56 LT 773.

111. Wiltshire v Coslert (1889) 5 TLR 410.

112. In relation to a lease this is provided in s 148 of the Law of Property Act 1925.

113. Attorney General of Hong Kong v Fairfrrx Lrd (1997) 1 WLR 149, PC (covenant restricting building on site had already been broken wholesale so further buildings could not be objected to).

114. Eg Gibson v Doeg (1857) 2 H & N 615 (breach of user covenant in lease for 20 years); Hepworth v Pickles (1900) 1 Ch 108 (breach of restrictive covenant for 24 years). Contrast Mitchell LJ Steward (1866) LR 1 Eq 541 (less than six months insufficient); Cooper v Henderson (1982) 263 EG 592 (approximately one year insufficient). Technically, a landlord who acquiesces over a period of years will not have been inactive because he will have accepted rent over the period but it is difficult to see that as important in relation to future non-compliance.

115. See Sayers v Collyer (1884) 28 Ch D 103 (three years sufficient) and Kelsey v Dodd (1881) 52 LJ Ch 34 at 37 (11 months probably sufficient, although there were also other factors).

116. Lloyds Bank Ltd v Jones (1955) 2 QB 298, CA (acquiesced in failure by one of two tenants to live on the premises as required, but did not need to accept neither living there); City and Westminster Properties (1934) Ltd v Mudd (1959) Ch 129 (knew that the tenant sometimes slept on the premises but did not know that he was using it as his residence).

117. Richards v Revitt (1877) 7 Ch D 224 (did not know the full extent of the breach); Attorney General of Hong Kong v Fairfax Ltd (1997) 1 WLR 149 at 152, PC.

118. Attorney General of Hong Kong v Fairfax Ltd (1997) 1 WLR 149, where there had been wholesale breach of a building covenant by the erection of a number of high rise buildings.

119. Tubbs v Esser (1909) 26 TLR 145, where the landlord lived at a distance and therefore would not have seen the advertisements on the side of the house and was not expected to visit the property to check on compliance with the covenants.

120. Shaw v Applegate (1977) 1 WLR 970.

121. Kelsey v Dodd (1881) 52 LJ Ch 34 at 37.

122. As opposed to acquiescence in the form of delay only. See in particular the judgments of Jenkins and Morris LJJ in Lloyds Bank Ltd v Jones (1955) 2 QB 298 at 325, 325-326 where the terms ‘release’, ‘waiver’ and ‘estoppel’ seem to be treated as interchangeable. See also Richards v Revitt (1877) 7 Ch D 224 at 226; Osborne v Bradley (1903) 2 Ch 446 at 451–452; Chatsworth Estates Co v Fewell (1931) 1 Ch 224 at 231; Shaw v Applegate (1977) 1 WLR 970 at 977–978, 979–980.

123. Eg Buckley LJ in Shaw v Applegate (1977) 1 WLR 970 at 977-978; Cooper v Henderson (1982) 263 EG 592 at 594, CA.

124. There is usually a potential financial detriment, for example the loss of goodwill of a business by having to move premises. The facts of Attorney General of Hong Kong v Fairfax Ltd (1997) 1 WLR 149 are not entirely clear, but it is possible that the landowner had acquired his leasehold interest after wholesale breach of the covenant, thereby paying for land which he believed he could develop as he wanted. There are cases, however, where it is difficult to find potential detriment, eg Stephens v Junior Amy and Navy Stores Ltd (1914) 2 Ch 516, CA, where the breach of covenant was a failure to build.

125. Attorney General of Hong Kong v Fairfax Ltd (1997) 1 WLR 149 at 152, PC. See also a number of older cases in which the courts presumed that there must have been a licence or release making the covenantor's acts lawful, otherwise it was inconceivable that the breach would have been allowed to continue: Gibson v Doeg (1857) 2 H & N 615, 623–624 as cited in Re Summerson (1898) (1900) 1 Ch 108n and Hepworth v Pickles (1900) 1 Ch 108 at 110.

126. Eg Kelsey v Dodd (1881) 52 LJ Ch 34. Acquiescence in more limited breaches (Knight v Simmonds (1896) 2 Ch 294) or positive authorisation of other breaches (Charsworrh Estates Co v Fewell (1931) 1 Ch 224) will not be sufficient.

127. Roper v Williams (1822) Turn & R 18.

128. Under LPA 1925, ss 52 or 53(1)(a) or Law of Property (Miscellaneous Provisions) Act 1989, s 2(1).

129. This was one of the reasons put forward by the Law Reform Committee for getting rid of the doctrine of prescription: Fourteenth Report on the Acquisition of Easements and Profits hy Prescription (Cmnd 3 100, 1966) para 32.

130. Eg Stuart-Smith and Hoffmann LJJ in Snell & Prideaux Ltd v Dutton Mirrors Ltd (1995) 1 EGLR 259 at 262,264 (in the context of abandonment of an easement); Ormrod LJ in E & L Berg Homes Ltd v Grey (1979) 253 EG 473 at 479 (in the context of proprietary estoppel). See also Knight v Simmonds (1896) 2 Ch 294 at 299 and Osborne v Bradley (1903) 2 Ch 446 at 457 where concern was expressed in the context of the loss of restrictive covenants through acquiescence in breaches by other covenantors that persons should not be deterred from acting neighbourly to a limited extent because of a fear of losing all rights.

131. Both of these were put forward as explanations in Williams v Coleman 27 June (1984, unreported).

132. See further the discussion in relation to proprietary estoppel, above text after n 34.

133. Rights acquired or in the course of acquisition by adverse possession are overriding interests: LRA 1925, s 70(1)(f).

134. Law Corn 254 Land Registration for the Twenty-First Century (Cm 4021, 1998), Pt X. It is proposed that adverse possession should continue to operate where the registered proprietor has disappeared and where there have been dealings off the register and both of these proposals would seem to be sufficiently justified on the policy reason of not sterilising land. In fact, the suggested procedure in the second situation would appear to bring in fault and, in some cases, unfairness as well. However, it is also proposed that the doctrine continue to operate where the claimant has entered land under a reasonable mistake as to his rights with no limitation to a situation where there is fault and potential detriment (although those would be factors relevant to the court's exercise of discretion) and no apparent policy reason in justification. Although this is clearly aimed at fairness, it is arguable that the situations in which it is available should be limited.

135. Except in the case of adverse possession, where there are other policy reasons as well, this has always operated alongside fault.

136. Easements acquired by prescription are overriding interests under LRA 1925, s 70(1)(a) and their acquisition does not need to be completed by registration for them to be legal (ss 19(2), 22(2)). The Law Commission has recognised the problem and recently suggested that a full review of the law is needed: Law Com 254, para 10.87.

137. Easements and covenants may continue to appear on the Register although no longer in existence and thus no longer enforceable: LRA 1925, s 52; Kitney v MEPC Ltd (1977) 1 WLR 981 at 991, 994. Although abandonment of an easement can be noted on the Register (s 46; Land Registration Rules 1925, SI 1925/1093, r 212) it needs proof and the Registrar is likely to require a court order (see the comments in Ruoff and Roper The Law and Practice ofRegistered Conveyancing (London: Sweet & Maxwell) 5th edn, 1986) at pp 804–805 concerning the note of an express release of a covenant).

138. The rules apply even where the original boundaries are still identifiable: Attorney-General v M'Carrhy (1911) 2 IR 260, as cited with approval in Southern Centre of Theosophy Incorp v State of South Australia (1982) AC 707 at 717.

139. This would apply to some of the cases discussed under the headings of abandonment of an easement and waiver of a covenant.

140. Law Com 254 Land Registration for the Twenty-First Century (Cm 4027, 1998), Pt X.