It can come as something of a shock if someone is always strolling across your land without permission and you find that you have no right to stop them because they actually have a legal right to be there.
Andrew Little, commercial property law expert at Pearsons & Ward Solicitors in Malton, explains how such legal rights of way or easements can be made by express grant, implied grant or by prescription.
An express grant is where the right is spelt out in writing, usually in a deed at the time of sale of the property. An implied grant may not be specified in any deed but is implied by law; they usually arise if someone could not access their property if the easement was not granted.
Easements by prescription are ones which can be particularly prevalent on agricultural properties, where large swathes of land can sometimes go unobserved for long stretches of time. This is because such an easement can be granted if an area of land is openly used, without force by a non-owner, but without permission from the owner. The qualifying time period during which the land must have been in continuous use is 20 years.
Thus, if an area of your land has been continuously used without secrecy, as a footpath for example, for 20 years or more and you have no evidence of actively objecting to it, the individual using it can apply to HM Land Registry to have the easement registered.
If the Land Registry is satisfied that all the criteria are met, the easement becomes a legal interest which will attach to your land and continue to exist even if you sell this part of your property.
Even if the prescriptive easement is not registered it will still be valid in law. Canny claimants will however register it to ensure the easement does not cease to have effect on a sale of the land. This could happen even if the new landowner had no actual knowledge of it, it was not obvious on a reasonably careful inspection of the land and it had not been exercised within one year of the sale of the land.
If someone has applied to have a prescriptive easement registered, you will first be given the opportunity to object by the Land Registry. The application will be cancelled if you can prove that the criteria has not been met. For example, if you had given your express permission for the land to be used in such a way, if the use of the land is illegal, or if the land was not being used openly.
If you cannot produce such proof, it is a good idea to seek legal advice from a property law expert who can lay out your options for you. Your first move will usually be to try and settle the dispute through negotiation; again a specialist solicitor can help you with this.
If this fails, however, the dispute may be referred to the First-tier Tribunal (Property Chamber) which will either give a ruling that is binding in the same way that a court judgment would be or order one of the parties to start court proceedings to have the dispute resolved.
Clearly, prevention is better than cure so the best way to stop a prescriptive easement arising is to erect clear signage around your property stating that your land is private and can only be used by authorised persons. This, according to the Court of Appeal in Winterburn v Bennett (2016), will be sufficient to prevent a prescriptive easement being claimed over the land.