Q&As

Can an easement be acquired where a house owner has accessed an adjacent village playing field for 20 years—without force, secrecy or permission—by ducking through a gap in a boundary hedge which has been created by that person?

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Published on LexisPSL on 10/01/2017

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

  • Can an easement be acquired where a house owner has accessed an adjacent village playing field for 20 years—without force, secrecy or permission—by ducking through a gap in a boundary hedge which has been created by that person?

Can an easement be acquired where a house owner has accessed an adjacent village playing field for 20 years—without force, secrecy or permission—by ducking through a gap in a boundary hedge which has been created by that person?

This Q&A raises two issues: the manner in which rights can be gained by prescription and the extent to which this can happen over a common.

It will be necessary to rely upon those rules relating to prescription where the house owner cannot point either to an express deed by which the right of way was granted or circumstances by which it can be implied either by necessity or under the rule in Wheeldon v Burrows. After 20 years’ use of the way as of right, it is assumed that there was at some stage an express grant but that it can no longer be located.

As the question suggests, the use must be without force, secrecy or permission, or ‘nec vi, nec clam, nec precario’. In the scenario in question, access is gained through a gap in a boundary hedge. It is assumed that the gap is clearly visible. To an extent however it is probably irrelevant as it is the use which must satisfy the test rather than the means by which access is gained. Providing that the crossing of the land satisfies the three limbs, then

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