What is a Prescriptive Easement?

Prescription is the acquisition of a right through long use or enjoyment. This long use is defined as at least 20 years.

An easement is a right enjoyed over land owned by a third party, and this can be in the form of a right of way, right for drainage pipes or other service media to pass over land, or a right to receive light, for example.

Requirements for a prescriptive easement

As noted above, the right in question must have been exercised for at least 20 years. However, there must also be a continuous use of the right, meaning that the right needs to be exercised throughout the 20-year period without interruption. This does not mean that the use needs to be constant, everyday use. But that the use must be continuous, i.e. every summer or every other month throughout the 20 years, and there cannot be an extended period of time where the right was not exercised as this will be deemed to be an interruption of the continuous use.

If you are making an application to the Land Registry to register your prescriptive easement, you will need to provide sufficient evidence that this right has been in place for the 20-year period as well as evidence that shows the continuous and uninterrupted use of the easement.

Potential issues for landowners

If you are a landowner, prescriptive easements can cause issues down the line should you have plans for your land, such as a development. For example, if a right of way exists over your land and the development has the potential to infringe upon this right, this may cause delays or changes to the development itself. It is important when obtaining a piece of land to carry out sufficient due diligence that identifies the existence of any existing easements that may affect your enjoyment of the property.

If you would like further advice in relation to prescriptive easements, please contact Joshua Stokes on 01543 431998 or by email at jstokes@ansons.law.