Prescriptive Easement
Discussion
Been reading this but not really any the wiser with regards to this question
https://www.gov.uk/government/publications/easemen...
We own some land that serves a number of houses with access from the main road. House builds range from 1950 onwards so not all paperwork is as tidy everyone would like.
Over the last few years as some houses have sold it became apparent that they had no right of access in their deeds. Purchaser solicitors wanted this resolved so wrote to us and we agreed to have the appropriate documents drawn up at the buyers expense. Everyone has been happy
However one resident in the same boat with no documented right of access has thrown us a curve ball. He and his predecessors have used our land as access for may years. Out of the blue we get a letter from his solicitor (talking to us would be a useful first step but he's an arse and has form for trying to throw his weight around the the area with quasie legal threats) stating that he has a prescriptive easement.
Now I suspect from the above link had he applied for one he'd likely get it, however if he has this is the first we have heard of it.
So to my question
Assuming he has applied and got one, should not we as the landowners over who's land it applies have been informed officially? By either the land registry, the courts or something? To follow on what form does the documentation for this take? Is it purely a note on his title deeds or is there a paper trail?
thanks in advance
https://www.gov.uk/government/publications/easemen...
We own some land that serves a number of houses with access from the main road. House builds range from 1950 onwards so not all paperwork is as tidy everyone would like.
Over the last few years as some houses have sold it became apparent that they had no right of access in their deeds. Purchaser solicitors wanted this resolved so wrote to us and we agreed to have the appropriate documents drawn up at the buyers expense. Everyone has been happy
However one resident in the same boat with no documented right of access has thrown us a curve ball. He and his predecessors have used our land as access for may years. Out of the blue we get a letter from his solicitor (talking to us would be a useful first step but he's an arse and has form for trying to throw his weight around the the area with quasie legal threats) stating that he has a prescriptive easement.
Now I suspect from the above link had he applied for one he'd likely get it, however if he has this is the first we have heard of it.
So to my question
Assuming he has applied and got one, should not we as the landowners over who's land it applies have been informed officially? By either the land registry, the courts or something? To follow on what form does the documentation for this take? Is it purely a note on his title deeds or is there a paper trail?
thanks in advance
I am not a lawyer and not sure what you have done with the other property owners, and whether there has been any charge payable. However the first thing I would do is read any documentation you may have to ensure that there is no paperwork relating to access rights for this house.
Ultimately if you think an easement might exist, and he is an arse, you can always just spend your time writing letters to his solicitor answering one point at a time, asking for more information, asking for evidence for his view, asking for copes of his deeds or whatever you like. He will then have to pay his solicitor for each response they write to you.
I understand the Court may not be keen on this approach but if you believe he is right you are not going to want to go that far in the first place.
Ultimately if you think an easement might exist, and he is an arse, you can always just spend your time writing letters to his solicitor answering one point at a time, asking for more information, asking for evidence for his view, asking for copes of his deeds or whatever you like. He will then have to pay his solicitor for each response they write to you.
I understand the Court may not be keen on this approach but if you believe he is right you are not going to want to go that far in the first place.
I am a similar landowner. Undoubtedly whether or not the paperwork is in place, there is likely to be a right of access if the other properties have it. Nothing to be gained by trying to put up barriers. (physical or metaphorical).
In a similar vein, there is also an obligation to repair if you have the benefit of the access, whether or not that obligation is apparent in the deeds. i.e. if there is no deed/covenant to repair in place, the road owner is under no obligation to repair, and the users who benefit either have to repair or ultimately lose the right of access. Also as I understand it, users who benefit from a right of access have liability to their visitors who use their right of access, providing a further incentive to contribute to repair.
http://www.shoosmiths.co.uk/client-resources/legal...
https://www.worthingtonslaw.co.uk/media/1911/art_9...
Of course the best outcome is everybody chips in when needed.
In a similar vein, there is also an obligation to repair if you have the benefit of the access, whether or not that obligation is apparent in the deeds. i.e. if there is no deed/covenant to repair in place, the road owner is under no obligation to repair, and the users who benefit either have to repair or ultimately lose the right of access. Also as I understand it, users who benefit from a right of access have liability to their visitors who use their right of access, providing a further incentive to contribute to repair.
http://www.shoosmiths.co.uk/client-resources/legal...
https://www.worthingtonslaw.co.uk/media/1911/art_9...
Of course the best outcome is everybody chips in when needed.
Edited by mr rusty on Friday 24th November 11:37
If someone is claiming prescriptive rights over your land, they are going to have to prove that they or their predecessors in title used the land for access. Is there evidence that they have eg: gates onto the land, worn foot paths to their properties etc?
As a matter of course, when we start to acquire vacant land we always insist that its fenced, this flushes out issues like this early on, although I did recently get caught out and had to move a building (fortunately not built) about 15 inches because of a prescriptive right. Its often easier to give in than fight!
If this claim doesn't actually impact on your use of the land, I would suggest that you agree with the claimants to formalise it with a specified route that gets registered. That way everything is then clear, as part of the registration you can make sure that the agreement extinguishes any other routes that they could subsequently claim.
In addition, its possible (I haven't checked), that prescriptive rights can work like adverse possession. Ie, the right or possession has to have taken place without the land owners permission. If permission has been given then the prescriptive right can't be enforced.
If I manage to speak to my property lawyer this afternoon, I will update on this point.
As a matter of course, when we start to acquire vacant land we always insist that its fenced, this flushes out issues like this early on, although I did recently get caught out and had to move a building (fortunately not built) about 15 inches because of a prescriptive right. Its often easier to give in than fight!
If this claim doesn't actually impact on your use of the land, I would suggest that you agree with the claimants to formalise it with a specified route that gets registered. That way everything is then clear, as part of the registration you can make sure that the agreement extinguishes any other routes that they could subsequently claim.
In addition, its possible (I haven't checked), that prescriptive rights can work like adverse possession. Ie, the right or possession has to have taken place without the land owners permission. If permission has been given then the prescriptive right can't be enforced.
If I manage to speak to my property lawyer this afternoon, I will update on this point.
If the other properties have the same benefit as claimed by this guy, why would you not agree it and formalise the agreement on the same terms, that way he will be liable for his share of the maintenance of the access route.
One thing I wasn't aware of in these situations is that the 20 year rule applies to not only the person claiming the prescriptive easement, but any people who had the title beforehand. I though it needed to be continuous, as in the same person?
One thing I wasn't aware of in these situations is that the 20 year rule applies to not only the person claiming the prescriptive easement, but any people who had the title beforehand. I though it needed to be continuous, as in the same person?
The Surveyor said:
If the other properties have the same benefit as claimed by this guy, why would you not agree it and formalise the agreement on the same terms, that way he will be liable for his share of the maintenance of the access route.
One thing I wasn't aware of in these situations is that the 20 year rule applies to not only the person claiming the prescriptive easement, but any people who had the title beforehand. I though it needed to be continuous, as in the same person?
-One thing I wasn't aware of in these situations is that the 20 year rule applies to not only the person claiming the prescriptive easement, but any people who had the title beforehand. I though it needed to be continuous, as in the same person?
IIRC If its an easement the right attaches to the property served rather than the person using it.
In my particular case it's made fairly obvious by the presence of very old dropped kerbs to the highway with a twin line of stone where wheels would run. (I also have an affidavit from the woman who lived there since the '50s)
Are there any similar features that might clarify the existence of rights of way on the OP's land, perhaps obscured by vegetation?
Are there any similar features that might clarify the existence of rights of way on the OP's land, perhaps obscured by vegetation?
mr rusty said:
I am a similar landowner. Undoubtedly whether or not the paperwork is in place, there is likely to be a right of access if the other properties have it. Nothing to be gained by trying to put up barriers. (physical or metaphorical).
In a similar vein, there is also an obligation to repair if you have the benefit of the access, whether or not that obligation is apparent in the deeds. i.e. if there is no deed/covenant to repair in place, the road owner is under no obligation to repair, and the users who benefit either have to repair or ultimately lose the right of access. Also as I understand it, users who benefit from a right of access have liability to their visitors who use their right of access, providing a further incentive to contribute to repair.
http://www.shoosmiths.co.uk/client-resources/legal...
https://www.worthingtonslaw.co.uk/media/1911/art_9...
Of course the best outcome is everybody chips in when needed.
I'm afraid you may have misinterpreted the articles you link to. Both are about whether or not a covenant to contribute to cost of maintenance which has been given expressly by one property owner is enforceable against future owners of that property (the benefit/burden rule providing an exception to the general position that positive covenants aren't enforceable against successors in title).In a similar vein, there is also an obligation to repair if you have the benefit of the access, whether or not that obligation is apparent in the deeds. i.e. if there is no deed/covenant to repair in place, the road owner is under no obligation to repair, and the users who benefit either have to repair or ultimately lose the right of access. Also as I understand it, users who benefit from a right of access have liability to their visitors who use their right of access, providing a further incentive to contribute to repair.
http://www.shoosmiths.co.uk/client-resources/legal...
https://www.worthingtonslaw.co.uk/media/1911/art_9...
Of course the best outcome is everybody chips in when needed.
Edited by mr rusty on Friday 24th November 11:37
So it's not 'if you use it, you must maintain it'. It's more like 'if your deeds say you must pay to maintain it, if you use it then you must pay to maintain it.
The Surveyor said:
One thing I wasn't aware of in these situations is that the 20 year rule applies to not only the person claiming the prescriptive easement, but any people who had the title beforehand. I though it needed to be continuous, as in the same person?
It doesn't need to be the same person - you often see stat decs from previous owners which are used to establish the required period of use for registration of the right. markiii said:
thanks all, for the record I wasn't suggesting he shouldn't or couldn't have access just that the whole prescriptive easement thing caught me rather by surprise as we hadn't been informed of anything
To be honest, it sounds like you might be just hearing the legal terminology for the logic that it sounds like you have already applied on a common sense basis - they are entitled to use the land for access because they always have.For clarity, a prescriptive right is just something that exists - it doesn't need to be written down anywhere (but they do get recorded once somebody applies to have it registered). Until that point, Land Reg etc would have no knowledge (but would notify you re an application for registration of a right against your title, at the point that happened). So it's probably the case that the fella hasn't tried to register the right yet.
If you don't intend to fight the assertion that he has a right then there doesn't seem to be much of a concern. Mr Throw His Weight Around/his solicitor would probably prefer the simplicity of an express grant, if you're willing to do that. I can also understand why the letter would have been written though, equally - not all land owners would be as reasonable as it sounds like you have (and the first thing they would think when approached regarding the grant of an express right would be £££).
I would be inclined to tell him that you are willing to grant a right expressly (on appropriate terms) as long as he pays your legal fees. Don't let your solicitor do any work before they get an undertaking from his for the costs.
Edited by bladebloke on Saturday 25th November 09:58
The Surveyor said:
If the other properties have the same benefit as claimed by this guy, why would you not agree it and formalise the agreement on the same terms, that way he will be liable for his share of the maintenance of the access route.
This case directly concerned the issue of maintenance - http://www.bailii.org/ew/cases/EWCA/Civ/2013/1103....The law relating to land can be a bit of a minefield. Get it wrong at your peril.
I suspect it can be a quite a lucrative field for those who specialise in it. Some cases can drag on for years.
Like this Scottish one which kicked off in 1998 and took 7 years to resolve - http://www.bailii.org/uk/cases/UKHL/2007/42.html
I love Scots law terminology: servitude. No, it doesn't equate to being a slave.
Can I stick a similar q onto this.
A property has a prescriptive easement to for access over land. The property owners now propose to build another house in their back garden and claim that this new property will automatically have a right to use the same access land - hey are intending to put a new gate onto the land.
(just to really screw things up the land in question is registered as common land)
A property has a prescriptive easement to for access over land. The property owners now propose to build another house in their back garden and claim that this new property will automatically have a right to use the same access land - hey are intending to put a new gate onto the land.
(just to really screw things up the land in question is registered as common land)
TooLateForAName said:
Can I stick a similar q onto this.
A property has a prescriptive easement to for access over land. The property owners now propose to build another house in their back garden and claim that this new property will automatically have a right to use the same access land - hey are intending to put a new gate onto the land.
(just to really screw things up the land in question is registered as common land)
They are almost certainly incorrect. You cannot intensify the use of a right of way.A property has a prescriptive easement to for access over land. The property owners now propose to build another house in their back garden and claim that this new property will automatically have a right to use the same access land - hey are intending to put a new gate onto the land.
(just to really screw things up the land in question is registered as common land)
But this stuff is a minefield and will need specialist property lawyer advice. I use Squire Patton Boggs in Manchester, DAC Beachcroft in London and Gowlings in Birmingham. They are all exceptionally good at this stuff but don't come cheap. If you need a contact name, pm me. (I have used other over the years but these are the guys I trust)
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