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Prescriptive Rights of Way

The usual means of granting an easement for a right of way is by a written deed. Right of way “by prescription” is a term used to describe the legal right, established by usage, to pass along a specific route through grounds or property belonging to another. These legal rights do not have to be created by a deed. Rights of way can be acquired by long usage; 20 years uninterrupted use is sufficient to create an easement. The Prescription Act 1832 provides a defence to a claim from a hostile third party but the use must have continued up to the present day (except for the last year).

The doctrine of lost modern grant enables a right of way to be created by 20 years use and relies on the fiction that a deed of grant must have been made at some time in the distant past, but after the year 1189. As long as 20 years’ use can be proved, it would not matter if the use ceased at a later date and is not currently continuing. It doesn’t matter that the use has not been exercised since 1995. The character of the use, degree and frequency should be addressed when reviewing the evidence so that suitable statutory declaration can be prepared to show that the use is or was continuous, and without consent, objection from any third party or payment. Application can then be made to Land Registry to register a notice on the affected title that the land has the benefit of an easement. There may still be some room for doubt since the full extent of the right might be unclear, due to the absence of any formal deed. If there is not sufficient evidence to support an application to Land Registry then indemnity insurance may be needed. Underwriters will wish to inspect the statutory declarations and consider how long the easement has been used and whether or not the land is the land registered when deciding whether to offer cover.

© SA LAW 2017

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