Prescriptive Easements – What are they and how do you acquire one?

An easement is a legal right which allows one individual to use another individual’s land for a specific purpose. This could include rights of way over an accessway, access for the purposes of repair and maintenance to your property and rights to pass services such as water, gas and electricity via Servia media such as sewers, wires and pipes. 

Easements are most commonly created by: –

1. being expressly granted by one landowner to the other landowner; or
2. being reserved over land that a landowner is selling to a third party.

Whilst these are the most common methods that easements are created, easements can also be acquired through long use (known as ‘by prescription’).

Acquisition of rights by prescription is a legal principle established by the Prescription Act 1832. This allows an individual to acquire a legal right over third party land where that individual has used the right for a long period of time without force or secrecy, and without permission from the owner of the land over which the right is being exercised. 

If an individual believes that they have acquired a right over other land by prescription, they can apply to the Land Registry to have that right recorded against the title to the relevant property. 

Although the long period of use is an important factor in applying for registration of a prescriptive right, it is not the only factor the Land Registry would consider when deciding whether an individual has acquired a Prescriptive easement.

To make an application to the Land Registry for a prescriptive easement, a person must be able to establish the following: – 

1. As of right – The use of the right must be without force, secrecy or permission of the landowner. An individual must therefore be openly using the right and without the permission of the landowner whose land is affected. For this reason, it is important to check a legal property title to see if a legal right has already been granted as this would mean that a prescriptive right would not be required.

2. Continuous and Uninterrupted Use – The use of the right must be continuous and uninterrupted for a period of 20 years. This period can be made up by a single individual’s use of a right or alternatively, it is possible for an individual to ‘inherit’ a predecessors use and then add to this with their own period of use to establish a full 20-year period. 

   Evidence that would need to be provided to the Land Registry on this would include statement(s) from an individual and/or their predecessors outlining the nature and extent of the right being used supported by photographs, plans and other available evidence. The more evidence that can be provided which corroborates the use of the right strengthens an application. 

   Should there be an unexplained period of the right not being used i.e. there has been an interruption, or insufficient evidence provided to the Land Registry to support the use of the right, this can hinder an easement arising and the prospects of an application made to the Land Registry.

3. Benefits and burdens two properties – The easement must benefit one property, usually referred to as dominant tenement, and burden another, usually referred to as the servient tenement.  These two properties must be freehold and must not be owned by the same people.
4. Lawful Grant – The right which a person is looking to acquire must be one which could be legally granted by deed. For example, a legal right of way could be granted over an accessway, or to pass services through service media. If a legal right cannot be legally granted by a deed, for example a right to pollute a river contrary to statutory prohibitions against this, the right cannot be acquired by prescription. 

The Land Registry will consider the validity of an individual’s claim and would notify the burdened landowner. This notification allows the burdened landowner an opportunity to step forward and object to a prescriptive right being recorded on their land on basis that the requirements to do so are not satisfied. If, however, there are no objections an entry will be entered on the property title to formally record the right. 

You should note, however, that a prescriptive right is legally binding once established regardless of whether it is recorded on the property title or not. Having the right recorded, however, does avoid disputes or uncertainty on this if a property is a sold in the future.. 

If you’re buying, selling or re-mortgaging your home and want clear legal guidance, our Residential Property team at SE‑Solicitors is here to support you. Contact me, Samantha Lawson to discuss your property needs and get tailored advice from our experienced team.