Q&As

Can a prescriptive easement (right of way) over third party land be acquired where the party, claiming the right, owned the property benefitting from the right as freeholder from 1990 and 2009 and then sold the freehold and took a lease back from 2009 within no gaps in physical occupation of the property benefitting from the right or in use of the rights of way?

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Published on LexisPSL on 16/03/2018

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Can a prescriptive easement (right of way) over third party land be acquired where the party, claiming the right, owned the property benefitting from the right as freeholder from 1990 and 2009 and then sold the freehold and took a lease back from 2009 within no gaps in physical occupation of the property benefitting from the right or in use of the rights of way?
  • Background—acquiring easements by prescription
  • Can a tenant acquire an easement by prescription?

Background—acquiring easements by prescription

Easements can be established other than by express deed and implied grant through a process known as prescription. Prescription is defined as ‘a title acquired by use or enjoyment had during the time and in the manner fixed by law’. In other words, prescription is the acquisition of a right through long use or enjoyment; the law presumes that the right was lawfully granted.

One of the most common ways that an easement is established by prescription is under the Prescription Act 1832 (PA 1832). By virtue of PA 1832, s 2, an easement can be established by the dominant owner showing twenty year’s use without interruption of the servient land. There is, of course, the proviso that this twenty-year use was not achieved by violence or in secret or is dependent upon the will of another person; namely with consent. See Practice Note: Acqu

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