Advice on prescriptive easements

Prescriptive easements - can consent defeat my application for the right to be registered?

An easement is a right for a third party to use someone else’s land for a specific purpose. If you have been continuously or regularly exercising a right for at least 20 years (such as a right of way, a right of access, or a right for service media to pass over or under somebody else’s land) and that right is exercised without secrecy, force, or permission, then you may have a claim to register this right at the Land Registry as a prescriptive easement. This concept is founded on the presumption that if the right has been enjoyed for over two decades, the neighbouring landowner has effectively lost their right to object to that right and has consented to that right being made lawful.

To establish a right by prescription, the person claiming the right must establish the following:

1. That he has exercised the right for at least 20 years without interruption. You do not need to establish daily use, but you must ensure that any gaps in use are relatively short.

2. That the right has been used in the same way for the whole of the 20 years.

3. That you have not exercised the right by force or stealth, or with any consent of the neighbouring landowner.

As the use of the right must be exercised without secrecy, force, or permission, if permission is given (either orally or in writing) by the landowner over whose land the right exists, a claim for a prescriptive easement may be defeated as this may mean that a licence for the right has arisen, rather than an easement.

When a right has been used openly for 20 years, there is a rebuttable presumption that the easement has been enjoyed “as of right” (without secrecy, force, or permission). The burden of proof regarding the requisite period of time and the requisite use lies on the person making the application. However, the person claiming the right does not have to provide evidence to disprove the existence of an express permission or force at any time during the 20 year period. This is the responsibility of the landowner over whose land the right exists.

If the landowner can provide evidence that there has been permission or that the use was contentious, then it could be considered that the presumption referred to above has been rebutted. There is no reason why an implied permission may not defeat a claim to the use “as of right”. But there is no general principle that if the landowner has tolerated the use, no prescriptive easement can arise. If nothing is expressly said or written, the conclusion may be reached that the landowner has acquiesced in the use. Use by acquiescence will be use “as of right” capable of giving rise to a prescriptive easement.

The first thing to check is whether you have had consent from the current landowner, or any previous landowner, during the 20 year period. If the enjoyment of the right was originally by permission, the success of any claim to a prescriptive easement is a question of fact and depends upon the evidence, and whether it is inferred that this permission has continued during the period of use.

Crombie Wilkinson Solicitors are able to advise you on the merits of any application for a prescriptive easement. If you have any queries about how we can help you, please contact our Agricultural Team at our Malton office on 01653 600070, who will be able to discuss the next steps with you.