Easements by prescription
Marcus Francis, head of Real Estate at FSP, looks at how easements can be acquired by prescription (long use) and the difficulties that can arise with them.
Let us begin by asking what an easement is? It is a right for one land owner to use someone else’s land for a specific purpose. A right of way over a private road is an easement as is a right to lay an underground pipe. Easements can be extremely important to some property owners as without them they might find themselves landlocked or unable to enjoy their property for its intended use. Housebuilders are particularly interested in them when buying development land.
The majority of easements come into existence when lawyers incorporate them into agreements relating to property (which we call deeds). When Mr Green agrees to grant Mr White a right of way over his land the parties enter into a “Deed of Grant” which creates the easement. When Mr Blue sells off a landlocked parcel of land to Mr Pink the “Transfer Deed” will grant to Mr Pink a right of way to get to the land he is buying. What we are interested in though is easements which are not “expressly granted” but rather they come about through the legal concept of “prescription”.
In its simplest terms prescription is about acquiring a right through long use or enjoyment. To bore you with some law, prescriptive easements can be acquired through common law, by “lost modern grant” or under the Prescription Act 1832. What we really need to know is that to acquire a prescriptive easement there needs to have been 20 years of continuous use “as of right”. It is also worth mentioning that a prescriptive easement cannot be acquired to do something which is unlawful so for example one cannot acquire a prescriptive easement to pollute a river (which was the subject of a case back in 2004 called Bakewell).
The 20 years use must be “continuous” in that there cannot be unexplained periods of non-use. The use must be “as of right” which means that it must be “without force”, “without secrecy” and “without permission”. As lawyers like to use Latin we sometimes refer to these as “nec vi”, “nec clam” and “nec precario”. “Without force” means that the exercise of the right cannot be contentious or against the will of the landowner. “Without secrecy” prevents someone from acquiring an easement by deceit so for example only using an access road in the dead of night would bar a claim to a prescriptive right. “Without permission” means that if the owner of the land has consented to an arrangement then a prescriptive easement will not arise.
Whether or not a prescriptive easement exists is essentially a matter of fact; if the 20 years continuous use as of right has been accrued then the easement will have come into effect. In most cases, it will be prudent to record the creation of a prescriptive easement in a “statutory declaration” made by someone with the requisite 20 years knowledge of the easement being enjoyed. As a further level of protection, the beneficiary of a prescriptive easement can register it against the Land Registry title to the land over which the right is claimed, although there are sometimes reasons why it might be better not to do so.
The law on prescriptive easements is both extensive and complex. Whether or not they exist is one matter but then it is often the case that the extent of the prescriptive easements need to be examined. This is because when a prescriptive easement is acquired the ongoing use of the easement is limited to the historical use of the easement. A good example of this is where a landowner acquires a right of way over a private road to access their paddock where they keep their horses. The easement acquired is a right to take horses and perhaps occasionally vehicles over the private road. What it is quite definitely not is a right to use the road to access a new warehouse facility or housing estate. Using the easement for such purposes would amount to “intensification” which is an area of the law which has been considered by the Courts on many occasions.
