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What is an easement?

17-02-2021


Generally speaking, an easement is a right a landowner obtains over another person’s land. A prescriptive easement is a right obtained through long use, usually 20-years. It is a complex area of law filled with many exceptions and anomalies, such as rights to light. While prescriptive rights can be protected by registration with the Land Registry, these applications can open the door to litigation.

What is a prescriptive easement?

While most rights are granted by a landowner, where a right has been used over another person’s land for a long period of time, then the person using the land can apply to the Land Registry to register the easement. For example, where a person has driven up a private road for 20-years, but there is no deed granting this right, the long use might allow them to register this right and to drive along the private road permanently. It is important that the person claiming the right has used the land without force, secrecy or permission.

A prescriptive easement is for a specific right to use somebody else’s land as opposed to adverse possession where someone is claiming ownership of the land.

The law of easements is complicated and there are numerous oddities and exceptions, such as a rights to light applying to leases. It is always worthwhile seeking legal advice, as the circumstances vary in each situation.

Are prescriptive easements transferable?

Easements are for the benefit of the land and not for a specific landowner. Therefore, when land is transferred the right is also transferred. If you have not owned your land for more than 20-years, previous owners who have used neighbouring land in the same way can evidence their use of the land, to make up the 20-year period necessary to apply to register the right.

Can an easement be terminated?

Easements can end either by agreement between the landowners, by law, or where consent can be shown, such as an abandonment of the right. An easement is not abandoned just because a landowner has not used their right in a while. However, where a landowner is looking to claim a right by prescription, failure to use the right for a time could interrupt the 20-year period required for registration.

How to register a prescriptive easement?

Landowners can make an application to the Land Registry to have their prescriptive rights registered against neighbouring titles. The owner of the land over which the right is being claimed might object to the registration. If the Land Registry finds the objection is not groundless, then the matter might be referred to the First Tier Tribunal (Property Chamber).

Should the matter be referred to the Tribunal, then the landowners in dispute will be subject to the Tribunal Procedure Rules and move towards a hearing and determination by the Tribunal. The landowners will be expected to prepare witness statements in support of their claim, provide relevant documents they rely on, etc, as they would in any other type of litigation. If one party has instructed solicitors, the other side is at risk of a costs order being made against them if the Tribunal rules against them.

Given the complexity of the law, the potential for a dispute to arise and the risks of litigation, it would always be worthwhile seeking legal advice before making any application to the Land Registry.

For more information on the easement process and how we can assist you, please contact Daniel Smith by emailing Daniel or by calling him on +44 (0)1635 508172.


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