If you have been exercising a right of way across a neighbouring piece of land, but have no written or verbal agreement, all is not lost.
You may be able to acquire the right using the laws relating to prescription. However, each case is looked at on its own specific facts and judgments then need to be made.
What do I need to show?
- At least 20 years continuous and uninterrupted use- This needn't be on a daily basis, but any gaps in use should be relatively short, and any gap of more than a year certainly has potential to cause problems
- The same use- If a right of way was used by foot only for 10 years and with vehicles only for a further 10 years, then no right would be acquired. The same type of use must be demonstrated for the full 20 year period
- 'As of right'- The right must have been exercised without force, secrecy or permission. By implication, this means that a right cannot be acquired where the same person is in possession of the land being benefited and burdened
- Lawfully granted- The right must be one that could be lawfully granted to you
How are prescriptive rights acquired?
There are 3 ways in which prescriptive rights can be acquired- under the Prescription Act 1832, common law or the doctrine of lost modern grant. The latter is the most commonly used, as once the 20 year period is established, the prescriptive right is acquired and cannot be lost even if the use is stopped or prevented. Under the 1832 Act, the 20 year period must be immediately before any court action or application to the Land Registry is made to crystallise the easement.
What type of evidence will I need to establish prescription?
As much evidence as possible is needed to show that the requirements of prescription have been met. This includes, but is not limited to, the following:
- Statutory Declarations, by people with knowledge of the type and length of use
- Detailed plans to show the exact route of the right of way
- Title information of the land burdened and benefited
What are the remedies if I do not successfully establish a prescriptive right of way?
- Injunction- An injunction may be granted to stop you continuing to exercise the right of way
- Damages- If an injunction is felt to be too oppressive, you may be ordered to pay damages instead. This is more likely where the damage to the neighbouring owner is trivial and means that you can continue to exercise the right of way.
Does the neighbouring owner need to know I have been exercising the right of way?
The owner of the land you are exercising the right of way over, must have either known or should have known of the use and could have done something to prevent it. This is easier to ascertain if the owner also occupies the land, rather than a third party.
Can prescription help me extend a right of way I already have?
Yes. If you have an express right of way already and start to use the right in a way which is outside the scope of the express right, then provided you fulfil all the requirements above, you may be able to use prescription to widen the right of way. For example, you may have an express right to use a right of way by foot, which you then extend to vehicular use by way of a prescriptive easement.
Can I register my prescriptive right of way?
Whilst registration is not essential, it is advisable, particularly where the right may not always be exercised regularly. Any applications to the Land Registry must be made using the correct form, described clearly and supported with sufficient evidence. The neighbouring owner will then have opportunity to object to the application. If objections are received and the parties cannot reach agreement, then the matter will be referred to the Adjudicator. The Adjudicator will either hold a formal hearing and give a ruling binding on both parties, or order one of the parties to commence court proceedings.
If I am only a tenant, what happens to the right when my lease expires?
Whilst your use as a tenant can form part of the period required to establish that a right of way has been acquired by prescription, the right itself attaches to the freehold estate. Once your lease ends, the right of way continues and can be exercised by the owner of the land or those occupying the owner's land. The right will not be personal to you as a tenant.
European Urban St Pancras 2 Limited v Glynn (2013)
This is an interesting case relating to prescriptive easements that Shoosmiths LLP advised on, out of which come some important points:
- A right to park cars on land can be acquired by prescription
- Even if consent for the right claimed has been given, providing that 20 years continuous use without permission can be established before this consent, a claim under lost modern grant can still be made
- A right that involves significant use of the neighbouring land, will not necessarily defeat a claim in prescription
Finally, in light of the lost modern grant method of acquiring prescriptive rights, it is vital for purchasers to fully inspect land and raise all necessary enquiries to ensure that there are no adverse rights that could either devalue the land or stop it being used in the way or to the extent that you intend.
Shoosmiths LLP have vast experience in dealing with rights of way and can provide advice on either acquiring such rights or defending rights claimed. If you have any queries, please contact Richard.Willcox@shoosmiths.co.uk or any member of the team.