A couple of recent developments, including a procedural amendment at HM Land Registry, are important to note.
A prescriptive easement is the acquisition of a legal right through long use or enjoyment. A legal easement can be granted by express grant (deed of grant, conveyances and transfers etc), or acquired through the common law, by lost modern grant or under the Prescription Act 1832.
In each case where it has been acquired (rather than expressly granted), there must have been at least 20 years’ continuous use or enjoyment ‘as of right’. To be clear, it must have been used nec vi, nec clam and nec precario (without force, secrecy or permission).
Whether a prescriptive easement has been acquired is a question of fact, and practitioners will need to obtain a statutory declaration or statement of truth (see Form ST4) setting out the factual background to the prescriptive right being claimed. On an application for registration, HMLR will decide on balance, on the evidence it receives, whether the claimant is entitled to make their application.
Following the ruling in Welford v Graham  UKUT 297 (TCC), applicants claiming a prescriptive right can rely on the presumption of use as of right by their predecessor in title, absent evidence to the contrary. In this case, the applicants sought to register the benefit of an easement (a right of way) over an adjoining yard to their workshop.
They argued that their predecessors in title had acquired the benefit of a right of way by long use of the way, relying on the principle of lost modern grant. It was submitted that there was an existence of an evidential presumption that the use was ‘as of right’ and without permission.
That argument was supported by a long line of authorities and “by good sense”. Mr Justice Morgan commented that the absence of such an evidential presumption would make little sense - the claimant would then have to adduce evidence that there was no permission at any point during the period of use.
He ruled: “Having called evidence to establish that the yard had been used openly and without interruption for a sufficient period of time, the Appellants had the benefit of an evidential presumption that such user was as of right.”
The property owner claiming a prescriptive easement might wish to consider whether to protect the right by registration at HMLR against the burdened title. However, there is no existing requirement for an entry to be made in respect of prescriptive easements – the benefit automatically passes on transfer and binds successive registered proprietors of the burdened land.
An application for registration of the benefit of prescriptive easement should be made on form FR1 on first registration of the benefiting land or using form AP1 thereafter.
If the prescriptive easement is to be registered, it is important for conveyancers to note that the guidance on the registration of easements is set out in practice guide 52, which has recently been updated to clarify the position where there are co-owners.
The changes include:
- If the benefiting land is jointly owned, the application must be made by or on behalf of all the owners (4.1)
- Where statements of truth or statutory declarations are made by one joint owner, it should be made clear that it is being made on behalf of all the owners (if that’s the case) (4.2)
So, where such an application is made – a careful reading of the practice guide is important ahead of submitting it to minimise any risk of having it rejected. The practice guide can be found here.