Easements – Acquiring An Easement By Long Use

This is the second article of our five-part series discussing all things easements, from their creation to claims of abandonment. In the first article of this series, we looked at what easements are and how they are created. This article discusses easements acquired by prescription.

What are easements acquired by prescription?

The basic principle of prescription is that, if a landowner has exercised a right over a neighbour’s land (subject to the requirements set out below), then the neighbour lost their right to object to that use.

The most common way for an easement to be established by prescription is under the Prescription Act 1832 (Act). To establish an easement under the Act, one must show:

Usually, if the right has been enjoyed for over 40 years, it is deemed absolute unless it can be shown that it was enjoyed by express consent.

Here at Nelsons, we deal with a wide range of easement queries, and some of the most contentious aspects (as well as frequently asked questions) on the matter of prescriptive easements have been briefly addressed below.

What is the right acquired?

The extent of the right acquired must relate to what has, in fact, been enjoyed. However, the right is not necessarily limited to use for the exact purposes for which the right was used during the period of prescription. It may be used for similar purposes or for other purposes which impose no greater burden on the land burdened by the easement.

Can a right of way established by prescription be claimed by more than one person?

The answer to this question is very fact specific and it depends on whether the burdened land is big enough to accommodate more than one dominant owner (i.e. land with the benefit of the right). This is because once the first right is acquired, the dominant owner has wide rights to exercise to prevent his right of way from being obstructed.

Can the acquired easement be used for the benefit of other or additional land?

The short answer is no. Taking the example of a right of way, if one is granted over land A in favour of land B, it can only be used for the benefit of land B over land A. It cannot be used, for example, for passing over land A to land C, even if land B and C are in common ownership.

Can the period of 20 years’ use be established by multiple owners?

Yes, the period of use of 20 years can be achieved through any number of different owners because the easement is a right that attaches to the freehold estate, as opposed to the identity of the owner.

What counts as an interruption in use?

Generally, the mere physical existence of an obstruction is not sufficient notice of interruption under the Act. There must be an adverse act indicating that the right is disputed and a discontinuance due to an obstruction which is submitted to or acquiesced in for one year.

Can I acquire an easement to park?

This is a question of degree and will depend on the facts of each case. It has been established that a right to park is capable of being an easement by itself. However, it must not be inconsistent with the proprietorship or possession of the burdened land. In other words, the right cannot be so extensive as to exclude the servient owners from their land.

Do I have any rights of repair attached to a right of way acquired by prescription?

The dominant owner of a right of way acquired by prescription has the right of repair but not a right to improve the burdened land. The right of way carries with it an ancillary right to repair the way, at the dominant owner’s own cost, but that right is limited to carrying out reasonably necessary work in a reasonable manner.

From a reverse perspective, if you are a landowner and wish to prevent or put a stop to a neighbour seeking to acquire a prescriptive right over your land, you should try to obstruct the third party’s use of your land as soon as possible, for example by putting up fences with appropriate signage.