On the purchase of a property it is important to ensure that you have all of the necessary rights for the use and enjoyment of a property. For example it may be that a right of access is required or rights for services through adjoining land. Such rights are normally granted expressly in a document such as a transfer or deed of grant.
In some instances a necessary right may not be documented. A buyer may be told by the seller that this is not a problem as they have exercised the right for many years and therefore a right has been acquired by prescription. However it is not necessarily this simple.
What are the legal requirements for the acquisition of a prescriptive right?
There are three ways in which a prescriptive right can be obtained. These are under the Prescription Act 1832, by virtue of the doctrine of lost modern grant and at common law. Put simply under all methods it must be shown that the right has been enjoyed for at least 20 years. However, there are slightly different rules for each type of prescription. For example at common law the right can be defeated by showing that the pieces of land with the benefit and burden of the right were once owned by one person.
The same basic rules apply to each method and it is not possible to acquire an unlawful right. The following elements must be considered:
(a) The right must have been enjoyed continuously - It depends on the individual circumstances whether the exercise of a right is continuous. For example in the case of a right of way regular usage is likely to be sufficient.
(b) Openness - The right must be used openly. For example if a right of way was only used at night and in secret, a prescriptive right is less likely to be established. In some cases the courts have also considered whether the owner of the land which is subject to the right should have known about the exercise of the right.
(c) Absence of force and permission - If the owner of the land which is subject to the right objects to and tries to prevent the right (e.g. by putting up a fence), but the person continues to exercise the right, this may prevent acquisition of a prescriptive right. Likewise permission may prevent the acquisition of a right as it may mean it is a licence.
(d) Right acquired by freehold owner - A tenant cannot acquire a prescriptive right against its landlord. However a user of land (such as a tenant) can acquire a prescriptive right for the benefit of its landlord. To benefit from the right the tenant would then need a subsequent grant of the right by the landlord.
What rights does a prescriptive easement actually give a buyer?
The extent of a prescriptive easement and the ancillary rights are not as clear as in a formal right which usually expressly includes matters such as a right to enter and repair. This may lead to problems.
A prescriptive right of way over a footpath or for passage of water through drains may cease to have a practical benefit if the footpath or drain falls into disrepair. The owner of the land which is subject to the right is not under an obligation to repair. The person with the benefit of a prescriptive right will have the benefit of an ancillary right to repair. However, this does not extend to a right to carry out improvements. The difference between repairing and improving is unclear but for example replacing a mud footpath with a concrete path is unlikely to be allowed as a repair.
In addition, a prescriptive right may be lost through intensification. For example if a farmer has a prescriptive right of way from his field across an adjoining field onto an adopted highway, a developer intending to buy the farmer’s field and build houses should not rely on this prescriptive right of way as its access. So a buyer interested in land reliant on a prescriptive right should consider whether its proposed use of the land will lead to intensification.
How can a buyer protect itself against the uncertainty created by having a prescriptive right?
The obvious solution is to approach the owner of the land which is subject to the alleged prescriptive right for a formal deed of easement. It is always possible that the owner will query if the right has been acquired and request a premium for the deed or at least its legal costs.
An alternative solution is to approach one of the many insurers in the market place and arrange for defective title insurance.
These two solutions are mutually exclusive. The insurance policy is likely to include provisions stating that the policy is not effective if the owner of the land (which is subject to the prescriptive right) is approached.
In addition, even if there is no formal deed of easement it is still possible to register a prescriptive right at the Land Registry with a supporting statutory declaration.
In conclusion if a buyer is told by a seller that a necessary right has been obtained by prescription. This statement alone cannot be relied on without further investigation as to whether the requirements for a prescriptive right have been satisfied and if the prescriptive right will be sufficient given the buyer’s intended use of the property.
For further information, please contact Mark Heighton (at mark.heighton@cms-cmck.com or on +44 (0)20 7367 2177) or Angela Watts (at angela.watts@cms-cmck.com or on +44 (0)20 7367 3953).
