A prescriptive easement is a legal right enjoyed over another’s freehold property and which is obtained through long use. It is similar to adverse possession, but in this case relates to a right to use another person’s property in a particular way rather than claiming ownership of the land. The long use is combined with a belief (often a fallacy) that the right was originally granted in a deed.

To be entitled to claim a prescriptive right the following conditions must be met:-

1. The use must be one capable of existing as an easement (such as a right of way or a right to use pipes, drains etc).
2. The use must have been exercised without force, secrecy and without permission.
3. The use must have been exercised continuously and without any interruption for at least 20 years. The 20 years use does not have be by the same owners.

In order to provide the evidence needed to prove that a prescriptive easement has been obtained, a statutory declaration or a statement of truth needs to be provided.

There is generally no need to register a prescriptive easement at the Land Registry as most prescriptive easements amount to overriding interests, meaning that they are automatically binding on the owner of the burdened property and their successors in title. However it is always considered good practice to do so wherever possible.

The Land Registry will register a prescriptive easement against a legal title provided they are satisfied with the evidence provided, they have seen the title or title deeds to the burdened property and they have obtained consent for the registration from the owners of the burdened property. Without this, the entry to be registered against the applicant’s title will merely refer to a claimed right. It will be made clear that the claimed right is not included in the registration.

Many people decide against applying for registration, either because they are unable to prove ownership of the burdened property or because they do not want to run the risk of the owners of the burdened property objecting to their claimed right. In these circumstances a statutory declaration or statement of truth is coupled with the taking out of an indemnity insurance policy. The cost of an indemnity insurance policy is a one off premium. Such a policy will indemnify the insured (and all subsequent owners) against certain financial costs incurred in the event of a third party preventing or seeking to prevent the insured from using the legal right.

Chartered Legal Executive Cathy Buck. Adams Harrison Haverhill office