PRESCRIPTIVE EASEMENT: Definition, History & How To Avoid Prescriptive Easements

prescriptive easement
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When you’re looking to buy a house, unexpected things can happen. You might discover during the home-buying process that the property you’ve made an offer on has an easement attached to it. Easement rights are shared with nearby landowners. In legal terms, an easement is a non-possessory interest in another person’s land that allows the holder to use the land in a specified manner. Easements come in a variety of shapes and sizes. This article will explain what a prescriptive easement in the UK is, how to prove a prescriptive easement, whether it’s beneficial or harmful, and how to prevent it.

What Is A Prescriptive Easement UK?

A prescriptive easement in the UK, sometimes known as an “easement by prescription,” is a legal arrangement that allows someone to get access to someone else’s property for very particular purposes. Easements by prescription arise when a person repeatedly and openly uses a portion of another person’s property without the owner’s permission.

This happens especially often in rural areas when a landowner is unaware that their property is being used. When a neighbour builds a fence on the property, this is an example of an easement by prescription. If the encroachment isn’t recognised or addressed within a specific amount of time, the neighbour may be able to establish a legal claim to utilise the property. The amount of time varies greatly depending on the state.

When an easement is recognised, the offending neighbour becomes the dominant estate owner. Unless the original owner of the property, known as the servant estate owner, sues the dominant estate owner, the dominant estate owner is the only one who can cancel the easement. Even so, the claimant has a chance of losing the litigation.

Prescription easements are one type of easement appurtenant, which happens when two properties are dominant and servient estates. The dominant estate owner has the easement, whereas the servient estate owner’s land is being upon by the dominant owner.

A Brief History of Prescriptive Easement UK

Courts have recognised the right to prescriptive easements for decades, according to Michael V. Hernandez’s article “Restating Implied, Prescriptive, and Statutory Easements.” Prior to 1275, English common law permitted prescriptive usage if it went beyond “living memory” or the Norman Conquest (1066). Following the enactment of the Statute of Westminster by Parliament in 1275, the required era became known as the “limit of English Memory,” referring to the reign of King Richard III (1189). The English courts later changed the prescriptive period once further, requiring that continuous usage have occurred within “living memory.”

This tradition persisted until the 17th century when the courts substituted the living memory norm with a numerical value. The court-created myth of a “lost grant” coincided with this development. This fiction meant that if a property was utilised for a particular period of time, it was evident that the user had previously been granted a right to use the property, but that the grant had expired. The initial time span chosen was 20 years, which corresponded to the duration of an ejectment proceeding. While the “lost grant” myth has been largely abandoned by US courts, the claim to an easement based on continuous and unlawful usage for a specified period of time still exists.

Rationales for the Concept of Prescriptive Easement UK

It is counterintuitive that a court would grant away a portion of a property owner’s rights without their agreement, particularly to a person who has acted against the owner’s rights. The numerous rationales for prescriptive rights, as Professor Hernandez explained, appear nonsensical at times and are frequently at odds with the realities of modern-day real estate usage. Nonetheless, the following justifications have bbeen givenby courts and commentators:

#1. Punish an Owner for “Sleeping” on Their Rights

Some courts have indicated that well-established land uses should be safeguarded and that property owners who sleep on their property rights (by failing to notice others who may be infringing on them) should be penalized by losing some of their rights.

#2. Incent the Productivity of Property

Courts have argued that putting a property to useful use benefits society. Where an owner fails to do so, those who are should take precedence. However, as Prof. Hernandez pointed out, there are times when useless land serves society. He cites farms that are by the federal government not to function as an example.

#3. Quieting Title Increases Certainty and Marketability

Some argue that determining whether a use meets the prescriptive criteria, and hence whether an easement exists, removes doubt about property rights. Increased certainty, it is, fosters market transactions and provides lending institutions more confidence in giving credit to them. However, a prescriptive easement is created when all of the necessary criteria are completed, rather than when a court is sought to enforce the easement through legal action, the capacity for a prescriptive easement UK to exist without being recorded actually fosters confusion.

#4. Reducing Litigation

Some have that if a specific legal right can be by the grant of a prescriptive easement. Then litigation over long-standing land use disputes should be eliminated. Prof. Hernandez answers that statutes enabling prescriptive uses actually increase litigation since they specify that after a certain amount of time, the use becomes a right. This forces the property owner to file a lawsuit challenging the easement before the time limit expires.

How Are Prescriptive Easements Made?

When someone utilizes someone else’s land for a purpose, whether consciously or unknowingly, a prescriptive easement UK is created. For a prescriptive easement to be granted, numerous requirements must be completed. The land must be for the following purposes:

  • Adverse and hostile: Someone’s using another person’s land without the authority to. If the landowner is aware of the adverse use and allows it, no prescriptive easement can occur.
  • Open and notorious: The occupier is not hiding their land use. It’s out in the open for all to see.
  • Exclusive: Only the trespasser is possessing and using the land, not the owner.
  • Uninterrupted: No gap in the use of real property is allowed.
  • Continued: The trespasser must occupy the land for the length of time determined by the state.

All these factors must be met for a prescriptive easement to be granted.

Are Prescriptive Easements Good or Bad?

There is a reason for prescriptive easements. They help to alleviate any tensions that may exist between neighbours. Assume you have a long driveway leading to your house that passes over your neighbour’s property. You can still use the property if you have a prescriptive easement.

If you own land or are purchasing a home with a prescriptive easement, though, it may not be something you desire. The easement remains in place even if the land is sold. It can lessen the property value, which can be beneficial when purchasing the property but detrimental when trying to sell it.

Prescriptive Easement Vs. Adverse Possession

Adverse possession and prescriptive easement have a lot in common. They’re incomparable ways, with a trespasser taking possession of the property and treating it as their own.

The difference is in who owns what. The trespasser is the right to use the land but not ownership of the land, and so becomes the easement holder, under a prescriptive easement. In an adverse possession case, the trespasser is the title of the land and is to pay taxes on it.

How To Avoid Prescriptive Easements

It is easier to avoid a prescriptive easement than it is to remove one that has already been established. A property owner or a potential house buyer can avoid them in two ways.

The most straightforward method is to prevent the trespasser from entering your property in the first place. This necessitates you noticing and disputing the constant use. This is the most confrontational method, and it may sour your relationship with your neighbours.

Giving the trespasser permission to use the property is another option to avoid a prescriptive easement. This avoids the adverse and hostile requirements in this situation, eliminating any concerns about establishing a prescriptive easement.

Even if the owner is unaware of a specific hazard, they can provide permission to unknown users in general. A sign that says “Private property” is an example of this.

How to Prove Prescriptive Easement

#1. Adverse

Adverse signifies the user is doing without the owner’s permission and in violation of the owner’s property rights. Typically, if the user would result in a trespass, it would meet this requirement.

The bank stated that the unfavourable aspect was eliminated in the Felgenhauer case when the then-manager consented to erect a gate in the dividing fence and allow the restaurant’s delivery trucks to continue passing across the property in 1988. If a property owner has provided approval, an act cannot be harmful to him or her. Why, then, did this agreement not nullify the proven prescriptive easement? Because the court that the prescriptive period had been and the easement had already been before 1988. Naturally, an owner’s permission to a previously perfected use does not revoke the right to use.

#2. Actual, Open and Notorious

This means that the party seeking the easement must have utilized the land and made his usage evident enough to provide the owner with real or constructive notice. When a hypothetical reasonable landowner should have seen the use, it is constructive notice.

In one California case, a party tried to establish a proven prescriptive easement that would allow them to ride their motorcycles across a neighbour’s land. No one had ever seen a motorcycle on the property, and the party had actually hidden their motorcycles after crossing the street. The court decided that such “secret” uses did not meet the open and notorious requirement, and thus prove prescriptive easement could not be granted.

It’s worth noting that, while a user must utilize the property in some way, that user does not have to be exclusive. A claim for a prescription may not be disqualified because of someone else’s use. And, as the Felgenhauer case demonstrates, prove prescriptive use will not be only because the owner utilizes the easement property as well (the bank had used its own parking lot).

#3. Continuous and Uninterrupted

The party seeking to enforce an easement must show that they have used the land continuously for the statutory time period, but this does not entail that they have done so consistently. For example, if the driver crosses the property only twice a day–on his way to and from work–an easement for a car crossing property may be established. Seasonal uses may even meet this criterion if they occur on a regular basis during the “on” season.

Furthermore, the owner must not have interfered with the use. In most cases, if someone other than the owner pauses the use, it does not detract from the continuity.

#4. Required Period of Time

The time it takes to establish and prove prescriptive easement varies from state to state. In California, for example, it is five years, ten years in New York, and twenty years in Wisconsin. While the user must exist for this time period, it can be the idea of “tacking” by combining the times that the successor parties the property. For example, if Andrew uses Zach’s property for ten years, then sells it to Barbara.


There is a reason for prescriptive easements. They urge landowners to make productive use of their land, and if a trespassing neighbour does so openly. They can establish easement ownership or a claim to the property’s usage. When purchasing a home, you should check to see if the land has a prescriptive easement. Consult your real estate agent to see if this is something you should think about.


Do you have to register a prescriptive easement?

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.

Can you remove a right of access?

A: If the extent of a right of way is properly defined, the owner of the land over which the right of way passes cannot alter its route. Or insist on its removal without the consent of the person who benefits from the right ie.

What are prescriptive rights of way?

The law relating to rights of way by prescription is complicated. But essentially a person has to establish 20 years’ continuous use of a right of way 

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The law relating to rights of way by prescription is complicated. But essentially a person has to establish 20 years' continuous use of a right of way 

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