An easement is a right which benefits a piece of land (the dominant land) that is enjoyed over another piece of land (the servient land).
The easement may confer rights allowing the proprietor of the dominant land to do something on or over the servient land, such as use a path or right of way, or run services and utilities over it.
Easements may be granted by way of a deed or other legal instrument. Alternatively, it is possible for easements to be acquired by long use. Such easements are known as Prescriptive Easements.
There are three coexisting methods for claiming a prescriptive easement:
- By virtue of the Prescription Act 1832;
- Pursuant to the doctrine of ‘lost modern grant’;
- At Common Law.
The owner of the dominant land must have used the servient land in a manner that is capable of existing as an easement. Such use must have been as of right, that it, without force, without secrecy and without permission (nec vi, nec clam, nec precario).
The user must have been for a period of 20 years irrespective of which of the above methods is used.
While the use must be continuous, it does not need to be constant. The regularity of use required for a prescriptive easement to arise depends upon the nature of the right claimed and whether the owner of the servient land ought to have been aware of it.
While a prescriptive easement over registered land does not need to be completed by registration to take effect at law, there are advantages to registration, which include the notification of third parties of the easement where its existence is not obvious on an inspection of the land.
Applying to register rights acquired by prescription can be complicated and legal advice should be sought at an early stage.
For more information, please contact our property teams: