Head of Farms, Estates & Rural Land | Real Estate | Private Wealth
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This guide looks at rights of way obtained through a period of long use. These rights are known as prescriptive easements. The guide will consider:
A prescriptive right of way is a property right known as an easement that has been acquired over someone else's property through long use.
To procure a prescriptive right of way, the person claiming must demonstrate the following:
A common example we see with rural land are access tracks to a field. Whilst you may own the field, you do not own the access track. The access track could form part of your neighbour's title if they own other fields that lead off the track. Provided you have used the track to access your field for 20 years or more without interruption or objection by your neighbour, then you could benefit from a prescriptive right of way. If your neighbour has granted you permission to use the track, however, that would not be a prescriptive right of way. If the permission was by way of formal grant, it may be an express easement instead or it could be by way of licence.
It is important to note as well that the right of way will be limited by the use over the 20-year period. For example, if the field has always been used for agricultural purposes, the use of the track for access would be limited to that purpose. If you then got planning permission to develop the field into a housing estate for example, you could not rely on the prescriptive right of way to access the development site because the right of way would no longer be used for agricultural purposes. A new right of way would need to be negotiated with the owner of the track or an alternative access route would need to be arranged.
The most effective way to protect a prescriptive right of way is to formally document the terms in a Deed of Easement. The Deed of Easement should then be registered with the Land Registry who will record the right of way on the title registers to both the dominant land (land which benefits from the right of way i.e., in our example, the field) and servient land (land which is burdened by the right of way i.e., in our example, the track). This will ensure that the right is formally protected and can mitigate against potential disputes arising because of a misunderstanding with respect to the terms of an unregistered easement.
If it is not practical to enter into a Deed of Easement, for example if the other landowner will not agree to do so, then the prescriptive easement can be registered unilaterally by the dominant landowner (in our example the owner of the field) by applying to the Land Registry. The applicant will be expected to provide evidence of the right of way by completing a statement of truth or a statutory declaration to document the period of use. It is critical to include as much information as possible to evidence the use of the right of way. For example, you will need to confirm how often the right of way has been used historically, what purpose was it used for, whether the right of way was used on foot, by vehicles, or with animals etc.
It may also be necessary to gather witness evidence from previous owners if your personal use does not extend over the full 20-year period. Any other evidence you can gather, such as photographs showing the historic use or witness evidence from employees, contractors, tenants or other farm workers that can provide testimony as to the historic use of the right of way will also be helpful.
If the Land Registry are satisfied that a prescriptive easement has been evidenced, the Land Registry will notify the servient landowner of your intention to register a prescriptive easement. The servient landowner will then have the opportunity to object to the application to register the easement. If the servient landowner does not object, then the easement will be noted on the title registers to both the dominant and servient land. However, if the servient landowner objects to the application, and the Land Registry does not consider the objection to be groundless, then the application may be referred to the Land Tribunal to make a determination.
If you are considering whether to make an application to register a right of way over your neighbour's land, you should carefully consider whether to notify your neighbour of your intentions before doing so to see if the easement can be documented with the consent of both landowners in a formal Deed of Easement instead. If they receive a letter from the Land Registry without notice, that could cause a conflict or sour an otherwise good relationship.
If you do not register a prescriptive right of way, there are a number of potential implications that could arise:
If you satisfy the legal tests for a prescriptive right of way then the servient landowner, in our example the owner of the track, cannot block your right of way. That is the case even if the right is not protected by registration.
Even if the owner of the track changes and the new owners do not want you using the track anymore, they cannot lawfully stop you from doing so, unless your use of the track suddenly changes. As we discussed, that could be because you are granted planning permission on your field for a change of use.
In the first instance, we would recommend talking to the neighbouring landowner to try and understand from them what their objection is to your use of the right of way. If they disagree that you benefit from the right of way, you should provide them with all the evidence of your use for the period of 20 years or more. If they still will not remove the obstruction, we suggest you seek legal advice. We do not recommend you taking matters into your own hands and trying to remove the obstruction yourself. At worst, forcibly removing an obstruction could result in criminal prosecution for criminal damage and trespass, which can result in fines, or in serious cases, imprisonment.
For more of our thoughts and other information on rights of way, be sure to listen to our latest Experts in the Field podcast episode below.