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 document evidencing his right. In such a situation all is not lost, as it may be possible to establish a right under the law relating to “prescription”.
A right acquired by prescription is a right established by the long use or enjoyment of that right. This is explored in more detail below.
Every application of the law relating to prescription will turn on its particular facts; however, a right can often be established where the following two key facts can be demonstrated:
1. 20 years’ continuous use of the right of way
The right must have been used for a period of at least 20 years, for the same use, and there must have been no interruptions in that use. This continuous use requirement does not require the right to be 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.
Commonly 20 years’ continuous use will have occurred immediately prior to the landowner seeking to establish the right of way. However, if it is clear that the right has been exercised for the requisite 20 year period but not recently, then this is not necessarily fatal to the landowner’s claim. The failure to use a right of way once it has been established will not extinguish that right, and in these circumstances the doctrine of “lost modern grant” will apply a presumption that the right was historically created by deed but that the document has now been lost. This is a particularly valuable presumption – as it can apply regardless of evidence indicating whether or not such a deed did in fact exist.
2. The use must have been as of right – “without force, without secrecy, and without permission”
The right must have been exercised by the landowner as if there was a formal right of way enjoyed for the benefit of his land (the dominant land) over the neighbouring land (the servient land). It is also important that the servient landowner knew about the exercise of the right of way and took no steps to prevent it when he could otherwise have done so. This submission by the servient landowner to the right of way will be more easily established where the servient landowner occupies the servient land himself, and in contrast will be difficult to establish where the land is let to a third party and has been for the duration of the exercise of the right.
Before the Land Registry will register the right of way, they will need to be satisfied that a right has in fact been acquired. Supporting evidence and information will therefore play an important role in establishing that the elements necessary for claiming a right of way by prescription are present. Examples of information and evidence likely to be particularly helpful are: