Prescriptive rights in property law
What do we mean when we talk about prescriptive rights in property law?
Claiming an easement by “prescription”
Easements are legal rights enjoyed over another’s land. Examples include rights of way, services and support. In the majority of cases, an easement is created by a deed or some form of legal instrument and “runs with the land” (i.e. the right passes from owner to owner). These are known as “legal easements”.
What is the position though when a landowner exercises a right which has not been formally recorded by a deed? This situation can often appear in rural areas where properties require access over privately owned tracks or where private sewage treatment systems drain into a nearby ditch owned by a neighboring landowner.
Rights by Prescription
Fortunately, easements can also be acquired by prolonged use via a method known as “prescription”. The basic principle of prescription is that if a landowner has exercised an easement over another’s land nec vi, nec clam, nec precario (not by force, nor stealth, nor licence) and for a long period, the other landowner loses their ability to object to the exercise of the right and effectively consents to it being lawful.
How to Record a Right by Prescription
An application to register prescriptive rights can be made at HM Land Registry but the applicant must be able to show a number of grounds. Namely, it must be established that the applicant:
- is the legal owner of the land which has the benefit of the right(s);
- has exercised the right(s) for at least 20 years without interruption (daily use is not necessary but the use must be reasonably consistent);
- has used the right(s) in the same way for the whole of the 20 year period; and
- has not exercised the right by force, stealth or with any consent from the other landowner.
If the above grounds can be demonstrated satisfactorily to the Land Registry, the usual procedure of serving notice on the other landowner and giving them the opportunity to object then follows. If the neighbor satisfies HM Land Registry that they have grounds to object, the Land Registry may refer the matter to a Tribunal for judgment. If not, the Land Registry proceed to enter a notice of the right on the registers of both titles.
Sam Read is a solicitor in the Property Team at Barker Gotelee, Suffolk solicitors.