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“We’ve always used that road!” –
What are prescriptive easements and
how can you benefit from them?

“We’ve always used that road!” – What are prescriptive easements and how can you benefit from them?

Published: 1st March 2019
Area: Real Estate & Planning
Author: Ben Darlow

A prescriptive easement is a right (commonly a right of way to access your property), which is acquired by long use or enjoyment of that right. There are several legal methods to acquire the benefit of a prescriptive easement; however, the crux is that the use (together with the same use by previous owners of your property) must have been broadly continuous for a minimum of 20 years and that use is without the permission of the owner of the land the right is over.

What is a prescriptive easement?

Often an individual will use a right of way over a privately owned road to access their house, or to access their business premises, for many years without issue. It only becomes an issue when the use is challenged, interrupted or the private landowner wants to charge maintenance costs for the upkeep of the road.

“We’ve used that road for access for as long as I can remember” and “No-one has ever told us we can’t use the road” are common thoughts that might indicate you are in a prescriptive easement situation.

What is the issue?

Whilst a prescriptive easement does not legally need to be registered with the Land Registry for you to benefit from it, formal registration is beneficial as a way of evidencing the existence of your right and protecting it from challenges by the current and future owners of the land your right relates to.

Situations like the above happen for many reasons. It is usually due to a historic failure to grant a formal right when a property is transferred, the need for such a right was not apparent at the time, or the nature of the property has changed over the years and therefore no formalities were considered regarding necessary rights.

How can we help?

The Land Registry are cautious about allowing the registration of prescriptive easements as they are based on potentially unclear and uncertain practical usage, rather than strict formal wording in a deed.

To protect your right, we can apply to the Land Registry on your behalf to register your right against your property, and also against the property your right is over. In order to do this, documents must be provided to the Land Registry by way of statements of truth and statutory declarations, evidencing the extent of the right and the minimum 20 years’ usage. Without this, the Land Registry will not accept the intended use of the right.

We can help you prepare these necessary documents to ensure your argument and application is as comprehensive as possible and therefore likely to be accepted by the Land Registry.

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