Prescriptive Rights: How to Save a Life or just a Bad Medicine?
Acquiring a site is one thing, but equally as critical is the ability to use it for your desired purposes. Do you have sufficient parking provision on-site or do you need to use a neighbouring car park? Are you able to access your property directly from the public highway or do you need to pass over land in third party ownership? If, in either case, the latter applies, do you have the benefit of sufficient rights to do so?
An easement is a right for an owner of one parcel of land (the dominant land) to do something on another owner’s parcel of land (the servient land), or (less usually) to prevent the owner of the servient land from using such land in a particular way. One way in which an easement can be established is by prescription, where such use must be shown to have been ‘as of right’ (i.e. having been enjoyed without force, secrecy, or permission), and there must be continued enjoyment of such use for a prescribed period of time. An easement may be established by prescription in one of three ways – at common law (i.e. a presumption of grant for any use which can be shown to have been exercised for at least 20 years, unless such use had not actually been exercised at all times since before 1189 or if the dominant land and servient land had been owned by the same party at any time), under the doctrine of a lost modern grant (i.e. if a right has been enjoyed for at least 20 years without any other lawful explanation, unless it can be shown that there was a grant and that the grantor was not capable of granting the easement) and by statute (based on 20 or 40 years of use immediately prior to legal action calling the use into issue).
Given that it is such a complex area of law, it is unsurprising that disputes over prescriptive rights often come before the Courts. In the case of Winterburn v Bennett  EWCA Civ 482, the owners of a shop claimed an easement by prescription to use the adjacent owner’s car park. However, the adjoining owner had put up signs saying that the car park was private and only to be used by its customers. The Court of Appeal held that the signs were sufficient to prevent the shop owner's claim because the use was not ‘without force’. No further steps were required to be taken by the owner of the car park, such as writing letters, confronting users verbally or instigating legal proceedings.
Meanwhile, in the case of Welford v Graham  UKUT 297 (TCC), a neighbour had used a right of way over a strip of land for more than 20 years and claimed an easement by prescription. For the first 10 years it was clear the right had been used without permission, because the owner of the land did not know that the strip of land fell within his ownership. However, following a sale the new owner would almost certainly have known the full extent of its title. The Upper Tier Tribunal (“UTT”) held that it was very difficult, if not impossible, to prove lack of consent for the entire period of use, especially where use was by a former owner or over a very long period of time. Therefore, the presumption is that such use is ‘as of right’ unless the affected landowner is able to rebut this i.e the burden of proof was on the landowner to disprove the right existed, rather than on the neighbour seeking to establish the right. On the facts, the UTT held that the neighbour had acquired an easement through prescription.
These cases highlight how important it is for owners to be proactive, both in inspecting properties regularly in order to establish whether any third parties are exercising undocumented rights and to ensure that clear signs and notices are erected in order to prevent such rights being established.
Emma is a Senior Associate in our Commercial Real Estate team.