Such legal rights run with the land and disputes arising out of easements granted by deed are relatively uncommon – unlike prescriptive easements, which can cause a real headache.
Not all easements are created and clearly defined by legal deed and a steady number of rulings on the issue of prescriptive easements are being handed down.
But first, back to basics. The key characteristics of a legally binding easement are that there must be a dominant and a servient tenement; the easement right must accommodate the dominant tenement; and the owners of both tenements must be different persons.
Further, the right must be capable of forming the subject matter of a grant (because the easement is a registrable property right). Naturally, the easement needs to be clearly defined in order to be acquired.
The nature and effect of the majority of easements – within conveyances and deeds - are typically straightforward.
But prescriptive easements can be acquired through long use or enjoyment, where use ‘as of right’ has been for at least 20 years at common law, under the principle of lost modern grant or under the Prescription Act 1832. In these cases, the dominant tenement owner claims an easement over the servient land as of right.
Importantly, the use must be more than occasional and of sufficient intensity or frequency to be granted an easement by prescription.
In a 2021 case, a Church of England vicar had claimed a vehicular right of way, for the church’s benefit, over the neighbouring property. That land was a former school site on which the appellants had built a home. They had a drive or track giving them access to the public highway.
The vicar claimed to have acquired by prescription an easement along the track for vehicles to pass between the highway and a grassed area belonging to the church, where they could park. The claim was based on many years’ use by successive incumbents and their visitors. Evidence to that effect was provided by witnesses who included a previous churchwarden, curate and a former incumbent – as well as a funeral director.
The claim succeeded before the First Tier Tribunal (FTT) and the couple owning the neighbouring property appealed.
Interestingly, the FTT found that the church use of the track was occasional and “never frequent”, but still found that there was an easement by prescription. The appellants argued that as it was occasional, the use of the track was insufficient to give rise to the claim.
However, the Upper Tribunal said the requirement that use be more than occasional is not an absolute one. ‘Occasional’ is not a precise term and is subjective, depending on the context. So in this case, the evidence provided was clearly not occasional in the sense of being ‘casual’ and insufficient, as was claimed. There had, for instance, been weekly use as a matter of routine by the previous church warden.
The appeal failed and the registration of the easement would stand.
This is an important ruling that clarifies a key requirement for an easement to have been acquired by prescription. The use may have been ‘occasional’ - but that in and of itself does not mean the claim should fail. Context is key.
You can read the ruling here.