This article was first published in Western Morning News on 14 September 2016 and is reproduced by kind permission.
It is an all too common scenario: a landowner enjoys what he believes is a right of way over neighbouring land only to subsequently find that there is no written evidence of the right. In such a situation it may be possible to establish a right under the law relating to “prescription”.
A right acquired by prescription is established by the long use or enjoyment of that right; commonly referred to as establishing a right through “long user”.
Every application of the law relating to prescription will turn on the particular facts; however, a right can often be established where two key requirements can be satisfied. These are that the use of the right of way has been exercised for a period of at least 20 years and that the right has been exercised as of right and without permission.
The right must have been used for a period of at least 20 years, for the same use, and without interruption. The right does not need to have been exercised with any specific frequency, but it is important that there are no significant periods where the right is not exercised and which interrupt the 20 year period. Clearly the longer and more frequent the use of the right, the better the chances of successfully asserting a claim.
Commonly 20 years’ continuous use will have occurred immediately prior to the landowner seeking to formally record the right of way, but once the right has been established periods of not using it will not extinguish it. In these circumstances the law will apply a presumption that the right was historically created by deed but that the document has now been lost.
The right of way must have been exercised by the landowner as if there was a formal right of way enjoyed for the benefit of his land over the neighbouring land. It is also important that the owner of the neighbouring land knew about the exercise of the right of way and took no steps to prevent it. This acknowledgement will be more easily established where the neighbouring landowner occupies the land himself, in contrast to where the land is let to a third party.
Before the Land Registry will register a right of way, they will need to be satisfied that the right has in fact been acquired. Supporting evidence and information will therefore play an important role. Examples of information and evidence likely to be particularly helpful are:
Where the existence of a right of way can be established, the extent of the right granted will be limited to the previous use of the right. This principle was demonstrated in the case of Dewan v Lewis in 2011, a case which concerned access over a road leading to a farm. The owners of the farm were able to evidence longstanding access to the farm over the access road with horses, ponies and vehicles, and as such the claim to a formal right of way was successful. However, they were not able to successfully argue that the right of way extended to a right to drive cattle to and from the farm, as insufficient evidence had been presented to show that this specific use had been undertaken for the necessary 20 year period. This exclusion was a significant one for the farm owners, who wished to farm cattle at the property. This decision shows the importance of making sure any claim to a right of way is fully considered, and supported by adequate evidence of all those uses likely to be necessary going forwards.
Whilst we have considered the process for establishing a right of way above, many farmers and landowners may also find themselves in a situation where the position is reversed and they wish to stop a right over their land being acquired. In this situation the landowner should take steps to either stop the use or make clear that any use is with the landowner’s permission. Preferably, any permission granted should be recorded in writing between the parties and stated to be revocable. This will prevent the user being able to assert that the use of the land has been without the landowner’s permission (as required to establish a right). As large land holdings can be difficult to police for trespass, the courts have also shown willingness to accept that the erection of notices stating that land is private can assist in preventing a trespasser acquiring an interest over the land. The wider conduct of the parties will however remain relevant, and therefore must not be inconsistent with any such signs.
This can be a difficult, yet important area of law and if you require advice or assistance in respect of rural rights of way then please contact a member of Michelmores’ agricultural team on 01392 687720.