When acquiring a property one of the key issues to look at is what rights third parties might have across the land to be purchased – and what rights you might take the benefit of as the new land owner.

“Prescriptive rights” can be acquired if the right is exercised for 20 years without interruption and “as of right”; not by force, not in secret, and not with the permission of the landowner.
But actually proving that permission has never been given is a somewhat tricky task – how do you prove a negative?

The Upper Tribunal have applied an evidential presumption to deal with this quandary. In Welford v Graham the purchasers claimed a right of way over an adjacent yard. The primary position is that the party claiming the right must show 20 years use and that the owner of the land has effectively acquiesced to the use.

However, the Court found that once the claimant has provided sufficient evidence to show that they have exercised the right openly and without interruption for that 20 year period, the burden was on the land owner to rebut the presumption that the use was “as of right” – by producing evidence that permission had been granted or the use had been by force.
This means that historic use can be used to claim a legal right of way, even where the claimant cannot prove that the use was without permission.

Practical points
• Land owners should ensure that they take precautions to ensure they can’t be found to have acquiesced to rights across land. Even if signs are erected any use should be reviewed and the appropriate action taken where necessary if prescriptive rights are to be avoided.

• Those seeking the benefit of a prescriptive right could consider registering that right at the Land Registry to protect it where they can demonstrate 20 years use. It should be borne in mind that the right will be limited to the original use.

by Karen Taylor
Associate Partner (Litigation)