Sometimes property owners have used rights (e.g. a right of way) over neighbouring land for many years but are surprised to find that these rights are not on the Land Registry title. This can cause problems and delays when the property comes to be sold or mortgaged or if the neighbouring landowner challenges use of these rights.
This article is the first in a two-part series on the rights that can be obtained through long use, how to enforce them, and how to avoid them from being established in the first place. This first article focuses on which rights can be acquired.
Can a right be acquired through long use?
Yes, provided certain conditions are met:-
- The right must have been exercised without interruption for at least 20 years immediately prior to the date of the claim. The right does not need to be used on a daily or frequent basis but it must be used regularly. It is a question of fact in each case how often the right needs to be used but very occasional use is unlikely to be sufficient. (Use by previous owners of the property can count towards this 20 year period provided that there is clear evidence of such use – for example, a formal statement of truth made by previous owners).
- The right must have been used in the same way throughout the whole 20 year period – so, for example, use of a right of way by a single house would not be sufficient to establish a right of way for 5 houses if the property were to be redeveloped.
- The right must have been exercised “as of right” – so not by force (e.g. breaking down fences), by stealth or with the neighbour’s consent. (Although it may initially seem odd that use of the right cannot be with the neighbour’s permission, this is because claiming rights through long user is akin to the procedure for claiming title by adverse possession “squatters’ rights”. If the neighbour is willing to give permission for the rights to be exercised over his land, this should be documented by a deed of grant of easement).
What kinds of rights can be claimed though long user?
Examples of rights which can be acquired through long user are:-
- Rights of way;
- Rights to use drains, pipes or other services in adjoining land;
- Rights of support (from adjoining properties); and
- Rights of light (i.e. the right to receive light through existing windows in a property).
It is a general rule that a landowner cannot acquire a right to do something which is prohibited by law. This has resulted in a debate as to whether a vehicular right of way can be acquired over a public footpath/bridle path.
It used to be thought that a right to park on neighbouring land could not be acquired through long user, but it has now been held that this is possible (depending on the circumstances).
In general, a tenant cannot claim rights against its landlord unless these are expressly set out in the lease – the exception to this is that a tenant can acquire rights of light (depending on the wording in the lease).
Some rights are considered too vague to be acquired through long user e.g. it is not possible to acquire rights for TV reception in this way. Similarly, there can be no right for an attractive view not to be obstructed.
What is “prescription”?
“Prescription” is the legal term for acquiring rights through long user. Other legal terms which you may hear used are:-
“Easement” which is another term for a legal right;
“Servient tenement” which means the property affected by the right; and
“Dominant tenement” which means the property having the benefit of the right.
If you would like any advice on any of the matters mentioned above, contact Eleanor Rattay on 0116 281 6224 or Eleanor.Rattay@bhwsolicitors.com.