Prescriptive Easements: When Long Use Becomes A Legal Right
“We have used this land for years, does that give us a legal right?” The answer may be yes.
A prescriptive easement may allow a person to acquire a legal right to use another person’s land through long-term, continuous and uninterrupted use. Legal disputes involving prescriptive easements most commonly concern access, drainage, parking, services or rights of way.
Easements
An easement is a right enjoyed by one piece of land over another. It allows a third party to use a specific part of another person’s land for a specific purpose. Easements can be created in three main ways:
- An express grant, where the use of another’s land is expressly agreed in a deed or contract.
- An implied easement, where the right is inferred by law from the wider historical or geographical circumstances.
- A prescriptive easement, which is acquired through long, qualifying use.
Prescriptive Easement Core Requirements
The legal basis for acquiring an easement by prescription may arise under common law, the doctrine of lost modern grant, or the Prescription Act 1832.
The starting point for all three legal bases is that there must be at least 20 years’ qualifying use of another person’s land. That use must be “as of right”, meaning it must be without force, without secrecy and without permission.
Without force means that the use must not be contentious, resisted or achieved by overcoming physical obstruction.
Without secrecy means that the use must be open enough that the landowner could have reasonably known about it.
Without permission means that the use has not depended on any form of consent from the landowner.
This above must be done continuously for at least 20 years.
Common examples of prescriptive easements include:
- A homeowner crossing a neighbour’s driveway for decades to reach their property.
- A business using a shared rear yard to store goods.
- A property relying on pipes, drains or cables crossing from neighbouring land.
Enforceability
A prescriptive easement can exist even if it has not yet been noted on the property title. However, once the requirements for a prescriptive easement have been satisfied, it is best practice to register the right with HM Land Registry as soon as possible.
The application to HM land Registry will require evidence of the qualifying use. If there is an objection to the application, it may be referred to the tribunal for determination.
Formalising the right can make it easier to enforce if a dispute arises later. It will also ensure that the easement does not cease to have effect on a future transfer of land.
Conclusion
In short, if a land has been used in a particular way for many years, that use may become a legal right. However, these cases are not always straightforward, and whether a prescriptive easement has been acquired will depend on the facts.
For landowners, buyers and developers, the key is to identify potential prescriptive rights early, preserve evidence, and take steps to either formalise the right or challenge it where appropriate. As these issues can affect access, value and future development.
Whether you are dealing with a dispute over rights of way, easements, boundaries or another issue affecting your property, our Property Disputes team can provide clear, practical advice tailored to your circumstances. We can help you understand your legal position, protect your interests and, where necessary, resolve disputes through negotiation or court proceedings. To speak with one of our specialist solicitors, contact our team on 0330 822 3451 or request a callback.