Collas Crill Explains... Acquiring Rights Over A Neighbour's Lands

• Published date: 17 September 2021
• Subject Matter: Real Estate and Construction, Construction & Planning, Real Estate
• Law Firm: Collas Crill
• Author: Mr Michael Morris, Donald Millar and Jessica Burgess

This week's guide outlines how to establish a right of way over a neighbour's land by prescription and offers case study examples to show how this might play out in practice.

Easements

An easement is a legal right for a person to use another's land in a certain way, for example, where a landowner grants a neighbour a right of way over a roadway on their property.

In the majority of cases, an easement is created by a deed and 'runs with the land' (ie the right passes from owner to owner). These are known as 'legal easements'. Easements may also be acquired by prolonged use by a method referred to as 'prescription'.

What is prescription?

If a landowner has used a neighbour's land, 'not by force, nor stealth, nor licence' and for a long period of time, the neighbour has effectively lost their right to object to that use and has consented to the nature of that use being made lawful.

A claim to register a right of way is often made on the basis that a right of way has been continually used for a period of time over 20 years or on the basis (or sometimes false notion) that the right is the result of a historic grant.

Prescriptive rights are similar to adverse possession, but in this case relates to a right to use another person's property in a particular way rather than claiming ownership of the land.

Step-by-step guide to establishing a right of way by prescription

The conditions necessary to establish a prescriptive right of way are as follows:

• The right must have been exercised by the property owner for at least 20 years without interruption. The right of way must have been used regularly and there must be no long gaps of non-use.
• There must have been no force or secrecy whilst exercising the right by the property owner claiming the right. Further, the neighbour must not have given the property owner a licence so to do, ie permission.
• The right must have been used in the same way for the whole of that period, ie a right of way on horseback should have been exercised on horseback.
• The right of way must be such that it could have been created lawfully, eg a right of way for the purpose of dumping rubbish would be unlawful.

The burden of proof

It is for the party claiming to have acquired the right of way by prescription to prove that the use was 'as of right'.

Recording a right by prescription

There is generally no need to register a prescriptive easement at the Land Registry as most are automatically binding on the owner of the burdened property. However it...