Case Study – Registering a Prescriptive Easement
In this case study we look at our client’s instruction to Lee Gaddes to register a right of way serving his residential property that had been established with long use over 20 years. This is known as a right of way established by prescription, and we look at the formal process of registering this as an easement at Land Registry.
Introduction: Prescriptive easements, also known as easements by prescription, are legal rights to use another person’s land acquired through continuous and uninterrupted use over a specified period. Registering a prescriptive easement involves formalising this right through a legal process. In this article, we will explore the legal process of registering a prescriptive easement, including the requirements, steps involved, and implications for landowners.
Understanding Prescriptive Easements: Before delving into the registration process, it is crucial to understand the concept of prescriptive easements. In essence, a prescriptive easement is established when someone uses another person’s land without permission for a specific period. The use must be open, notorious, continuous, and uninterrupted to qualify as a prescriptive easement.
Legal Requirements for Registering a Prescriptive Easement: To register a prescriptive easement, certain legal requirements must be met:
- Proof of Use: The claimant must provide evidence of continuous and uninterrupted use of the land for the statutory period, typically by providing witness statement and statutory declaration, photographs, or other documentary evidence.
- Hostile Use: The use of the land must be “hostile,” meaning it is without the landowner’s permission. However, hostility does not imply animosity; rather, it refers to the use being adverse to the interests of the landowner.
- Open and Notorious Use: The use must be open and obvious, such that the landowner should reasonably be aware of it.
- Exclusive Use: The claimant’s use of the land as right of way does not need to be exclusive, meaning they and their visitors use it on a regular basis.
Steps Involved in Registering a Prescriptive Easement: The process of registering a prescriptive easement typically involves the following steps:
- Gathering Evidence: The claimant gathers evidence to establish the elements of a prescriptive easement, including proof of continuous use over the statutory period.
- Legal Consultation: Seeking legal advice from a qualified Property Lawyer specialising in property law is advisable to understand the legal requirements and implications of registering a prescriptive easement.
- Negotiation or Mediation: Before becoming involved in any potential litigation, the claimant may need to negotiate with the landowner or engage in mediation to reach a mutually acceptable resolution.
- Registration: A detailed and thorough application to register the prescriptive easement is made to Land Registry which seeks to formalise the claimant’s legal right to use the land.
- Requisitions: Your Property Lawyer will reply to any requisitions (further enquiries) raised by Land Registry as part of the application process.
Implications for Landowners: For landowners, the registration of a prescriptive easement can have significant implications. It may restrict their ability to use or develop the affected portion of land and could potentially affect the property’s value. Landowners should seek legal advice to understand their rights and options when faced with a claim for a prescriptive easement.
Conclusion: Registering a prescriptive easement is a complex legal process that requires careful documentation, legal expertise, and adherence to statutory requirements. While prescriptive easements can provide valuable rights to users of land, they also have implications for landowners. By understanding the legal process and seeking appropriate legal guidance, both claimants and landowners can navigate the complexities of prescriptive easements effectively.
