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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I clarify that your client is seeking to establish a continuing use of the fire door as a fire door - i.e. is not seeking to expand this into a regular right of way please?
hello Joshua - yes we only need to establish continuing use as a fire door. I am aware of an American case which supports our view - it is
sorry Joshua - the link I have just sent is the American case. In summary: Landmark'sprincipal contention on appeal is that there was insufficient evidence ofBrooks, Gill's actual continuous use of the fire escape for twenty years toestablish the easement. Although the described instances of physical use of thefire escape over the years were hardly sufficient by themselves to create aneasement by prescription, the case turns on the peculiar nature of a fireescape. It was being "used" continuously after 1962, even if theoccasions for representatives of Brooks, Gill to walk on it were few. Brooks,Gill "used" the fire escape as its method of satisfying the Statebuilding code requirements for egress. Without interruption, it afforded to theoccupants of the Brooks, Gill building a safe evacuation route should a fireprevent egress through other exits. In this sense its "use" wasanalogous to the use of a wall in an adjoining building for support, which, byits very existence in a particular location, may be "used" in such away as to create a prescriptive easement. See Ottavia v. Savarese, 338 Mass. 330 , 334-335 (1959). Contrast Merriam v. 352 West42nd Street Corp., 14 A.D.2d 383 (N.Y. 1961). We think the judge correctly analyzedthe facts along these lines as a basis for her conclusion that the continuoususe requirement had been satisfied.[Note 1]
Do you know of any uk equivalent precedents?
As you will be aware if a right can be demonstrated for 20 years or more then a right can be acquired by prescription under the Prescription Act. The right that can be acquired is based upon the actual right that has in practice been used and enjoyed and not beyond.
The above is laid down in s2 Prescription Act and is statutory law and the neighbour cannot contest this.
Case law in this area has focuses on what is established right and what is excessive use beyond the right that can be claimed by established use. Case law is complex and contradictory and there have been many cases that have considered what is established use by prescription and what goes beyond this. The leading case was McAdams Homes Ltd v Robinson  EWCA Civ 214
Here the issue was whether an implied easement could be used for the benefit of the two houses erected in place of a bakery. The Court of Appeal held that it could not. In this case, the redevelopment of the bakery and its change to residential use was held to be a radical change and, on the evidence, there would have been a substantial increase in the use of the easement.
The above case would support a neighbour resisting an attempt to enlarge the right of way beyond that of an occasional access to be used in an emergency to a regular right of way. Howeve in terms resisting a claim for prescription itself if 20 years of use can be shown s2 Prescription Act provides a right to claim a right to continue to do so if exercised without neighbours permission or secrecy and neighbour has no basis to claim otherwise other than to challenge the evidence presented.
Is there anything above I can clarify for you any further?
well....the lawyers acting for my client say that we need to demonstrate continuous use of the fire escape in order to be certain that we will secure prescriptive rights. We can not demonstrate daily or even weekly use; I am trying to get some case law to hang our hat on that supports the Amercican Landmark case so that we can allay fears that our potential tenant may have that the owner of the car park land can prevent them from using this as an escape. How can we be certain that a court will find in our favour that a fire escape easement has been created?
They are correct in what they say. The rule was established in Wheeldon v Burrows and a right which is used intermittently cannot be established as a right of way. However where a right of way is apparent the requirement for continuous use is relaxed as provided by Ward v Kirkland  Ch 194. If the escape is in practice rarely used then in order to claim a right of way you would need to be able to demonstrate that the right of way is apprarent based on physical features as provided for by the above case. This might include a pathway and escape ladder or in deed anything which to a casual observer would suggest an access route.
...in our case the physical presence of a fire door and security shutter? Can we argue the fact that the building has been used consistently for in excess of 20 years and this could only be the case if there was a fire escape otherwise the property would not be capable of lawful occupation?
The features you mention are pertinent. Ideally however there would also be a physical indication of a path that is used over the land in question as well. If the fire escape simply opens onto a open area of land (a car park) then this would be inconclusive and it would not be clear how a court would interpret those circumstance based on decisions to date.
However if the structures have been in place for 20 years or more the position is likely to be largely academic because the neighbouring land owner could not require their removal if they have been in place for 20 years and cannot physically prevent individuals using them in order to vacate the building in an emergency. No court in the land would issue an injunction preventing individuals using a means of escape in the event of an emergency.
ok - so should we attempt to register this right despite the third party owner refuting it - or leave things as they are?
I think it depends what you want to achieve. I cannot see that a prescriptive right is as such necessary simply because the structures providing for a means of escape exist and have been from what you say in place for 20 years and therefore are lawful in terms of any overhang etc. That being the case the landowner cannot physically stop you or other parties using them to escape the building. He cannot use force, and all he could claim was trespass but as no damage would be done to his land there is no claim for him to bring. In addition he could not obtain an injunction to prohibit the use of the escape in an emergency for the above reasons. Therefore I think your client may be unnecessarily making work for himself for no obvious benefit.
However that said if your client wishes to attempt to establish the prescriptive right anyway he has grounds to do so based on what you say. The requirement for continuous use can be relaxed as above if there is clear physical evidence of the right claimed. Whether a court would accept that the existence of the ifre escape is sufficient to show a right over the car parks land is questionable. That there is a means of escape is irrefutable but the route over the car park taken having escaped may not be sufficiently clear to enable a right of way to be conclusively established unless there is a clear path demarcated in some manner.
That's extremely helpful - before I go are you able to send me a link to the ward v Kirkland cae - I am having no success getting access via google...
A pleasure. Unfortunately the case does not appear to be published on a public forum. I have access to it using a specialist legal library and unfortunately they do not allow text to be copied. It can be obtained from Westlaw (http://legalresearch.westlaw.co.uk/)
Thank you Joshua
Basically the above case decided that a quasi-easement would be deemed to be apparent if there is a permanent feature on the servient land that signals the existence of an easement - and that if this is the case the requirement for continuous and regular use would be relaxed. This might include a roadway denoting a right of way, windows denoting rights of light, or a channel denoting the right to take water.