Q&As

A tenant has used an access way over land owned by a third party for over 20 years. The landlord has not used the access way during that period. The tenant is in the process of purchasing the freehold from the landlord. Once the tenant completes the purchase of the freehold, can they seek to claim a prescriptive easement over the access way on the basis of their use of the land whilst they were a tenant?

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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk
Published on LexisPSL on 26/09/2018

The following Property Q&A produced in partnership with Georgia Whiting of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A tenant has used an access way over land owned by a third party for over 20 years. The landlord has not used the access way during that period. The tenant is in the process of purchasing the freehold from the landlord. Once the tenant completes the purchase of the freehold, can they seek to claim a prescriptive easement over the access way on the basis of their use of the land whilst they were a tenant?
  • Common law
  • Lost modern grant
  • Prescription Act

Prescription is a means of acquiring a right through long use of enjoyment. There are three methods of claiming a right by prescription:

  1. at common law;

  2. by lost modern grant;

  3. under the Prescription Act 1832 (PA 1832)

Common law

At common law, it is presumed that a right which could be shown to have been exercised for at least 20 years, had commenced before 1189. This presumption could be rebutted by showing either of the following:

  1. the right had not in fact been exercised at all times since before 1189, or

  2. at some point the dominant and servient land had been owned by the same party

Lost modern grant

Under the doctrine of lost modern grant, if a right has been enjoyed for at least 20 years without any other lawful explanation, it is presumed:

  1. to have had its origin in a deed of grant made after 1

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