Right of Way by Prescription
A right of way that is not created expressly, i.e. by Deed, may come into being in other ways, e.g. implied rights of way, rights of way by necessity, by prescription, by estoppel and by prior use. The focus of this article is on rights of way that are acquired by prescription.
Prescriptive Rights of Way
Where there is no express grant of a right of way, i.e. no Deed creating it, and a property owner has exercised a right over the neighbour's land for at least 20 years, a legitimate right of way exists, whether the neighbour agrees to it or not.
The conditions necessary to establish a prescriptive right of way are:
1. The right must have been exercised by the property owner for at least 20 years without interruption. The right of way must have been used regularly and there must not be any long gaps of non-use.
2. The right must have been used in the same way for the whole of that period, i.e. a right of way on horseback should have been exercised on horseback.
3. There must have been no force or secrecy either by the property owner claiming the right, or by his servants or agents. Further, the neighbour must not have given him a licence so to do, i.e. his permission.
4. The right of way must be such that it could have been created lawfully, e.g. a right of way for the purpose of dumping rubbish would be unlawful.
A prescriptive right of way can be terminated in any of the following ways:
1. By abandonment, i.e. where the property owner's actions show a clear intention to terminate his use of the right of way permanently.
2. If the property owner acquires the neighbour's property. It is a condition of all easements that there be a dominant and a servient tenement, i.e. two properties that adjoin each other, owned by different persons, where one has the benefit of a right and the other has the burden of that right.
3. Where the property owner agrees with the neighbour to release his use of the right of way permanently.
Title Register Entries
The Title Register will not necessarily show prescriptive easements. This will depend on whether one or both properties are registered. They will still exist and be binding, however, as they will be overriding interests. If both properties are registered, it is more likely that the prescriptive right will be shown in the Register.
The following example shows the wording that would appear in the A section of the Title Register for the dominant tenement, i.e. the property having the benefit of the prescriptive right:
In this case the property owner has applied for registration of the prescriptive right of way. Both properties are registered. The property owner's solicitor has supported the application with a statement of truth signed by the property owner, setting out details of the right of way claimed, and why he is entitled to it.
The Title Register for the neighbour's land (the servient tenement) will be amended by inserting the following clause in the C section thereof:
Rights of Way Search
A Rights of Way Search would include copies of each Title Register and the Statement of Truth, in addition to the other documents (Title Plans, Conveyancing Deeds and documents relating to Public Rights of Way).
Rights of Way Search