Kriti Sherchan from our commercial property team gives the lowdown on easements by prescription, rights by practice and the potential problems that can arise.

  1. What is an easement by prescription?

It is often the case that, where it is necessary, an easement is expressly granted, by deed, over neighbouring or third party land to facilitate services, utilities or rights of way. The idea being that the easements expressly granted will facilitate some activity on the benefitting land.

By contrast, an easement by prescription is where you acquire a legal right over another person’s land through long use, by operation of law (and therefore without the easement being expressly granted by deed). This is different from express “legal easements” which are already noted on your title deeds confirming you have a specific right over another person’s land e.g. right of access to maintain hedges, access services etc.

It is not uncommon, especially in rural communities for individuals to exercise rights in practice which are not formally recorded in either their or the neighbouring landowners’ title deeds. In most cases, landowners may not be aware that the right in question is not formally recorded as they may have been doing so for a long period of time without any objections. Examples of such rights can include the following:

  • Pedestrian or vehicular access over private tracks
  • Parking over private land and over your neighbour’s driveway
  • Connecting and using any services/utilities
  • Private treatment plants which may drain into your neighbour’s ditch

The lack of a formal easement will usually come to light when you are either selling or buying as part of the due diligence process undertaken by the solicitors.

  • What do you need to show?

Under English law in order to establish a right by prescription, you must show the following:

  1. Exercise of the said right for at least 20 years without interruption. This does not mean that you have to show that you have used it daily, rather to show that there have not been any long gaps in between that would constitute a “separate” period of time;
  2. That the right has been enjoyed throughout the whole of the 20 years; and
  3. That the right has been exercised without secrecy, force or with the permission of any third parties. In order words, you have not received either written or oral consent to exercise the said right.
  • What can you do?

You will need to make an application for registration to the HM Land Registry by providing a statement of truth summarising the factual background to the right being claimed. Whether or not you have acquired an easement by prescription is a question of fact. Therefore, it is important to have accompanying plans where applicable, to confirm and show the area of land in question and any other documentary evidence to show you have exercised the said right.

The statement can be made within one of the HM Land Registry’s standard forms or you can provide a statutory declaration. If you are able to demonstrate the above requirements to the Land Registry’s satisfaction, they will go on to serve a notice on the landowner and will allow a period for any comments and/or objections the landowner may have. If no objection is made, relevant entries will be registered on both of your titles. However if an objection is made and there are sufficient grounds for objection then the Land registry may refer the matter to a Tribunal for determination.

Alternatively, there are other options landowners may decide to take such as taking out indemnity insurance, an agreement for a temporary licence or negotiation for a formal grant of easement. It is advisable to seek specific advice at the earliest opportunity in order to avoid any disputes or difficulties in the future.