If you’ve ever wondered how legal rights over someone else’s land can come into existence without a formal written agreement, you’re not alone. Two of the most common ways this happens are through implied easements and prescriptive easements, but they work in very different ways. Understanding the differences and knowing when they apply can save you considerable time, money and hassle.
What is an Easement?
An easement is a right benefiting a piece of land that is enjoyed over another piece of land, such as a right of way or right to light. The main way of creating an easement is by express grant when two landowners agree the terms of the easement in a formal contract known as a deed. However, when a landowner sells part of their land, the law may imply certain rights that were not expressly written down. These are known as implied easements. Prescriptive easements on the other hand are rights which a landowner can acquire by over 20 years of use.
The Fundamental Difference
The key distinction is simple: implied easements arise automatically when land is divided and sold, while prescriptive easements are earned through 20 years of continuous use. Think of implied easements as the law’s way of filling in gaps that the parties forgot to address during a sale, whereas prescriptive easements reward long-standing use that nobody objected to in a similar way to adverse possession (aka squatter’s rights).
Types of Implied Easements
There are four main types:
- Easements of necessity arise to prevent property from being landlocked such as a right of way over the only access road where there is no other conceivable way of accessing a property.
- Common intention easements are broader, arising where a right is necessary to give effect to what the parties obviously intended but did not expressly include in their contract.
- The rule in Wheeldon v Burrows implies rights in favour of a buyer over the seller’s retained land, provided the rights are “continuous and apparent” (like a visible worn path), necessary for reasonable enjoyment of the property, and were being used at the time of sale.
- Section 62 of the Law of Property Act 1925 can convert informal arrangements, such as permission to use a neighbour’s car park, into full legal easements upon a property transfer, even if the deed makes no mention of them.
Types of Prescriptive Easements
Prescriptive easements require proof of use “as of right” for at least 20 years, meaning without force, without secrecy, and critically, without permission. Any evidence that your neighbour has allowed your use will defeat your claim as it must be exercised as a right and not a favour.
While a prescriptive easement technically exists in law once you’ve met the 20-year requirement, protecting it properly requires registration at HM Land Registry. This typically requires a statutory declaration which is a formal statement made by the applicant proving that their right amounts to a prescriptive easement. Once submitted, the burdened landowner is given 15 days to object. This process can take anywhere from 12-24 months depending on whether there are any objections (though the application itself may only require a few hours of drafting).
Overriding Nature
Importantly, implied and prescriptive easements are “overriding interests” under Schedule 3 of the Land Registration Act 2002. This means they automatically bind future purchasers of the burdened land without needing to be registered, provided one of three conditions is met: the purchaser has actual knowledge of the easement, it’s obvious on a reasonably careful inspection of the land, or it’s been exercised within the 12 months before the sale. Therefore, if at least one condition is met, making an application to the Land Registry is not required, though it is still advisable in case the right loses its “overriding” protection.
A Final Word of Caution
If you’re a landowner, be vigilant about people using your land. A simple sign or written permission can prevent a prescriptive easement from arising. Equally, when selling part of your property, you are well advised to expressly exclude Section 62 and other implied easements in the contract to avoid inadvertently creating formal rights over your retained land. And if you’re buying, work with your solicitor to ensure all necessary rights are expressly granted. Relying on implied easements is risky while prescriptive easements may require a lengthy and potentially complex application to Land Registry.
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