Prescriptive Easements – The Process and Pitfalls

An easement is a legal right to use another person's land for a specific purpose, such as right of way, right of light, and right to pass services through another person’s land.

Easements can be acquired in various ways, including in the absence of formal documentation. One way of acquiring an easement is by prescription, where a legal right is acquired through long use, without force, secrecy or permission of the neighbouring owner.

How to establish a prescriptive easement?

To establish a prescriptive easement, certain criteria must be met:

As of right

The use must be without force, secrecy, or permission of the landowner. Clear signs can prevent a prescriptive easement from arising – in Nicholson v Hale [2024] UKUT 153 (LC), a sign stating the land was private property stopped a prescriptive claim. It is also worth checking that the right has not already been expressly granted – if the land is registered, the title register should reveal this.

Continuous and uninterrupted

The use must have been ongoing and uninterrupted for at least 20 years. It does not have to continue up to the application date, provided there was a 20-year period of continuous use supported by evidence.

Benefit and burden to two properties

One parcel of land must benefit from the right (known as the dominant tenement), and the other must be burdened by the right (known as the servient tenement).

A lawful grant

The right claimed must be one that could legally be granted, such as rights of way, light, air, and access. Parking rights may be acquired by prescription, but registration will depend on the extent to which such parking prohibits the servient owner's use of the land.

If the above criteria are met, an easement is likely to have arisen under the relevant legislation (The Prescription Act 1832) and, if the land is registered, the easement can be registered at the Land Registry so that it appears on the title for the benefit of subsequent owners.

How to protect a prescriptive easement by registration at the Land Registry?

Although prescriptive easements do not need to be registered with the Land Registry to be valid, it is sensible for rights holders to register them. Such rights have value, and a lack of registration can lead to uncertainty and disputes.

A buyer can 'inherit' the ability to apply for registration based on a predecessor's use, relying on previous use to make up the 20-year period. Evidence should be obtained on purchase in the form of statutory declarations setting out historic use. However, it is preferable to record such rights promptly, as disputes can arise on sale – for example, a neighbouring owner may suggest the rights were personal to the previous owner.

To prepare an application for registration, consider the following steps:

Collect evidence

Statements including a statement of truth from the owners asserting the right. Evidence may also be obtained from previous owners, neighbours, or third parties such as contractors who may have witnessed the right being exercised. Statements should set out the nature and extent of the right, route or area used, frequency and manner of use, and the period relied on. Corroborating material with historic photographs, aerial imagery, and Ordnance Survey mapping is helpful and adds more weight.

Plan

Obtain a plan clearly showing the extent of the easement. Specialist boundary surveyors can assist with this.

Review historic title documents

Review title documents to understand the property's history and ensure the right has not already been expressly granted, which would negate the need for a prescriptive claim.

Instruct a surveyor

Where there is uncertainty about the extent of the title, instruct a boundary surveyor to plot the boundary line.

It is important that all evidence is collated and analysed to present the strongest case for registration. In the event the neighbouring owner does not agree to the registration, the parties can try to settle the dispute, failing which it is likely be referred to the Tribunal for determination. Ultimately, the Tribunal will determine whether a prescriptive easement has arisen based on the evidence which has been filed and the matter may proceed to a fully contested trial.

Please do not hesitate to contact Emma Preece, Sylwia Barchus, or your usual Charles Russell Speechlys contact for further information. This insight is not a substitute for legal advice on the specific circumstances of your situation.