A question that frequently arises is whether long‑term use of a neighbour’s land, such as regularly walking across it, automatically creates a legal right of way. Many people assume that years of use must eventually turn into a legally recognised entitlement. In reality, the position is more nuanced.
What you are really asking is whether you have acquired an easement by prescription. To understand this, it helps to know what an easement is and how prescription works.
What is an Easement?
An easement is a right enjoyed by one piece of land over another, such as a right of way. It is a legal right to use someone else’s land without owning it. The leading case, Re Ellenborough Park [1956] Ch. 131 sets out the essential characteristics for an easement to exist.
One of the ways an easement can arise is through long, uninterrupted use – this is known as prescription.
What is Prescription?
Prescription is a legal mechanism where a right is acquired simply because it has been used openly and consistently for a long period without objection from the landowner. The law presumes that such long use must originally have been permitted or granted.
What use of the Land is Required for a Prescriptive Easement?
To acquire a prescriptive easement, the use must be without force, without secrecy and without permission (nec vi, nec clam, nec precario). The use will not count if the same person owns or occupies both the benefiting and burdened land, as no one can acquire a right against themselves.
The use does not need to be constant, but it must be regular and uninterrupted for at least 20 years. Significant or unexplained breaks in use can prevent a prescriptive right from arising.
So, do you have a Right of Way?
If you have walked over your neighbour’s land for many years, you may have acquired a legal right of way through prescription – but only if:
- Your use has continued for at least 20 years;
- The use was without force, without secrecy, and without permission;
- The freeholder of the burdened land knew or ought to have known about the use;
- The use was sufficiently continuous; and
- The right you claim is one that could have been lawfully granted.
If any of these elements are missing, a prescriptive right of way will likely not arise.
NB: There are exceptions to the general rules on prescription. i.e. a prescriptive easement cannot arise if the right would have been unlawful to grant in the first place. In addition, certain categories of land, such as railway land, canal land, and other protected transport infrastructure, cannot be burdened by prescriptive rights due to statutory prohibitions.
Need Advice About a Possible Right of Way?
If you are unsure if you have acquired an easement by prescription or want to protect your property from a potential claim, please contact us.
