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Claiming a right of way by prescription

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Posted by Mary Rouse on 14 March 2014

Mary Rouse - Property Litigation Lawyer
Mary Rouse Partner

Easements are rights of way and are standard features of land ownership. Often a landowner will have an easement for the benefit of services and utilities that run over their neighbour’s land.

Easements are often granted by a deed or are described in some form of legal instrument. Those easements are referred to as “legal easements” because they have been expressly granted. Easements may also be acquired by prolonged use by a method referred to as “prescription”.

The basic principle of prescription is that, if a landowner has exercised a right over his neighbours land, nec vi, nec clam, nec precario “not by force, nor stealth, nor licence” and for a long period, the neighbour has effectively lost their right to object to that right and has consented to that right being made lawful. A claim to register a right of way is often made on the basis that a right of way has been continually used for a period of time over 20 years or on the basis (or sometimes fallacy) that the right is the result of a historic grant.

What do you need to establish a right of way by prescription?

  • The landowner must establish that he has exercised the right for at least 20 years without interruption. The landowner does not need to establish daily use, but he must ensure any gaps in use are relatively short.
  • The landowner must establish that the right has been used in the same way for the whole of the 20 years.
  • The landowner must not have exercised the right by force or stealth or with any consent of the neighbour as this may result in a property dispute.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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