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Published 31 enero 2023
Many housebuilders and landowners will be aware of the term “Prescriptive Easements”, but what exactly are they, how are they acquired and what you can do to prevent them from being exercised over your land?
What are prescriptive easements and how are they acquired?
Prescriptive easements are rights acquired through long use or enjoyment by a third party and the types of rights that can be acquired are varied.
A successful claimant of a prescriptive right must be able to demonstrate the following:
1. Continuous use for at least 20 years. This means that during the 20 year period, the third party’s use or enjoyment of the land has not been obstructed and the third party must not have made any intention to abandon that right.
2. User as of right. This element is fundamental, as the right must have been exercised without force, permission or secrecy. This means that, if a landowner has objected to the third party right at some point over the 20 year period, then the right cannot be acquired. A user as of right cannot be established through a licence.
3. Use by or on behalf of a freehold owner against another freehold owner. A tenants use can establish an easement but it attaches to the freehold estate. This means a tenant cannot acquire an easement over other land owned by their landlord as the landlord cannot acquire rights against themselves.
4. A right claimed must be one that could be lawfully granted. For example, a right to pollute a river contrary to a statutory provision cannot be acquired by prescription.
How can you avoid prescriptive rights being acquired – practical steps?
1. Using clear signage. In the court of appeal case of Winterburn v Bennett prescriptive easements were claimed over a car park which had been used for over 20 years and which belonged to the adjoining conservative club. There were visible signs in the car park that stated the land was private and for the use of conservative club members only. The court of appeal held that a prescriptive right had not been acquired. The signs were visible to all users and clearly stated that the car park was private. Although effective in informing people not to park on the land, the sign did not mention pedestrian access and an easement for pedestrian access was acquired. The use of signs provides a simple and cost effective way of ensuring that third parties do not acquire prescriptive easements which may affect the use or development of the land.
2. Fences. Erecting fences together with appropriate signage sends a clear message that the land is private and an attempt to gain access may be viewed as taken with force, which is contrary to the requirements of establishing an prescriptive easement. Any gaps in the fence should be monitored and repaired as soon as possible.
3. Blocking garden gates. Similar to fencing, if a third party has made a gate in the fence to your land, you should block this up immediately and display a sign which clearly states the land is private and access is not permitted.
4. Inspecting the Property. Whether you currently own land or are in the process of purchasing it, the importance of regular inspection should not be underestimated. When purchasing land you should raise specific questions with the Seller to establish whether any rights are being exercised, for how long and what steps if any have been taken to prevent access or demonstrate that the right is not accepted. Where land is already owned, regular inspection will ensure that any new rights being exercised will be picked up early and appropriate action can be taken.
5. Insurance. Provided there has been no correspondence with the third parties, house builders commonly obtain indemnity insurance in the event that a prescriptive right is later established and materially affects their development. Typically an insurer will require you to securely fence the whole site and erect signage for a number of weeks prior to insurance being available.
In summary, the key to avoiding prescriptive easements being established is to obstruct the third party’s use of the right as soon as possible and make it clear that the land is private through the use of signs or notices at the very least.
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