In this article, Saima Zainab, Graduate Legal Assistant in our Commercial Property team, explores prescriptive rights and explains what property owners need to know.
What are prescriptive rights?
Prescriptive rights, also known as prescriptive easements, are a non- possessory right to use another person’s property
How are prescriptive rights acquired?
These rights are acquired through prescription which follows that these rights are acquired through long use or enjoyment. There are three methods of acquiring prescriptive rights/ easements:
- At common law
- By lost modern grant
- Under the Prescription Act 1832
How long does it take to acquire prescriptive rights?
Whichever method is used, the applicant must be using/ enjoying the property for at least 20 years.
What is the 20 year rule for easements?
For a prescriptive easement to arise, the use must be without force, secrecy or permission. Where the same person owns both the benefiting land and the burdened land. Time for prescription does not run during such period of common ownership. An example of this might be where person A has used a route across a landowner. Person B for many years. If person B allows person A to use that route no prescriptive easement will arise.
Each case will depend on its specific facts, and evidence of the use will be key. A statutory declaration will be required in which the facts are set out. If trying to acquire prescriptive rights where ownership is less than 20 years, a person may be able to go back to previous owners for declarations of prior use.
What is uninterrupted use in prescriptive rights claims?
Use does not have to be continuous, but long, unexplained gaps may defeat a claim. Under the Prescription Act 1832, a break only amounts to an interruption if it is accepted or acquiesced in for a period of one year.
What is the difference between adverse possession and prescriptive rights?
Easements and adverse possession both arise from long use of land, but they differ in effect. An easement grants a limited right to use another’s land for a specific purpose, whereas adverse possession can result in acquiring ownership of the land itself. Essentially the difference is right vs ownership.
What are the benefits of prescriptive rights on a commercial property?
- They may, if successfully claimed provide a dependable right of way, which is often essential for the effective use and operation of a commercial property.
- Where access has been informally used for many years, prescriptive rights may offer legal protection, ensuring that such access cannot be unexpectedly withdrawn by a neighbouring owner. They reduce the risk of disputes with neighbouring landowners.
- Once established, these rights attach to the land itself and pass automatically to future owners, enhancing the property's value and making it more appealing to potential purchasers or developers.
- They may unlock development potential, particularly where access is required to satisfy planning or operational needs.
- Difficult to challenge if the legal criteria have been met.
Do I need a solicitor to acquire prescriptive rights?
It is strongly suggested that you instruct a solicitor to help with this as they are thorough and will ensure that the appropriate measures are met to increase the likelihood of a successful Land Registry application especially as the criteria can be difficult to satisfy.
Specialist Commercial Property Solicitors
If, after reading this article, you have any questions about the Community Infrastructure Levy’s or Section 106 obligations, you can get in touch with a member of our expert Commercial Property Team by calling 01202 499255.
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