Don't stop me now - why it isn't as simple as just saying you've got a right of way and how prescription really works by Lee Stutt

If you've been using a path for 20 years or more, you might feel you're entitled to carry on without interference. Lee Stutt talks you through the legal rules behind prescription, a technical concept, but one which protects rights of way used for 20 years or more in certain circumstances. He's also covered the process of getting that right recorded so it can't be interfered with

‘Prescription’ is when a right, like a right of way, has been exercised for so long that it becomes a legal right, even though it was never expressly granted as one

If someone can prove that their property has benefited from a route across someone else’s land for more than 20 years, then that’s prescription, and in that case they may be able to have it registered as a legal right on their title

They can rely on their predecessor doing it as well; so, if they’ve only been the owner for 5 years but the previous owner used the route for 15 years, they can aggregate them to make the full 20

Because the right you acquire is proprietary - it goes with the land, not the person, so sequential owners of land can be used to make out the time needed to create the prescriptive right, and then it sticks to the property forever

Fair enough. But what do you do if you think you’ve got a claim?

Well, we’ve done enough of these to be able to give a reliable path of what to do, and what to expect. That’s right: we’ve been talking about and working with claims for prescription for more than 20 years, so we think we’ve acquired the legal right to talk about it

The How To

Land Registry Practice Guide 52 is indispensable for this, and if you’re dealing with this sort of issue you really must read it 

First, check you’ve got all the pillars you need to make out a claim:

1. 20 years of use;

2. Done without consent;

3. Without interruptions;

4. Without being by force; and

5. Without being in secret

Those last 3 together mean that the use has been ‘as of right’. And those are the 3 things: 20 years, without consent, as of right

You need to be able to evidence all of that, with witnesses or documents, in an application to Land Registry

For registered land, this is in form AP1, the standard Land Registry application form for making a change to the register

The AP1 needs to set out exactly what right is claimed: if the application is approved, this is the wording that will be added to the register, so writing it needs some care

For Land Registry to accept it as potentially valid, it needs supporting evidence, and that’s done by completing form ST4, the statutory declaration swearing as true the facts relied on, fixing them as evidence

They will want to hear ST4 evidence from all of the people who can prove the 20 years usage. They’ll also need a plan of the route to Land Registry’s standard (a topographical surveyor is useful for this) and anything else in support, like photos, receipts for maintenance works done there, or Google Earth imagery showing the line

If Land Registry accepts the application in principle, they send it to the other landowner.

Importantly, they send it to the address they’ve been given by them; which is why it’s important to ensure that your address is up to date. If it’s not, change it !

If they don’t object (including if they don’t respond to the application because their contact address is bad), then Land Registry will enter the right as a legal right of way on the titles

When that happens, it’s an easy and cheap administrative process. 

However, often people don’t like the idea of their land being devalued and interfered with by someone else trying to force a right of way to be registered against it, so they object, often in very strong terms

Then it becomes contentious proceedings, and therefore more technical and expensive. In reality, it becomes a form of litigation

The owners can negotiate between themselves, and are encouraged to, but if they can’t reach agreement, then HMLR must refer the matter to the First-tier Tribunal (Property Chamber) (“the FTT”) under section 73(7) of the Land Registration Act 2002.

The FTT deals effectively as a Court would, but it has its own Rules, different to those of the main civil Court system, so it’s important to have some familiarity with them, and not assume that the usual CPR apply. The FTT rules are sometimes seen as more flexible, but not always so, because the Tribunal has no inherent jurisdiction, only that given to it by statute; so except where an FTT rule expresses flexibility, they are hard and fast rules that must be followed   

The person seeking registration of the right of way becomes the Applicant, and the person over whose land the right is claimed becomes the Respondent 

At the start of this process, Land Registry will send the FTT a case summary, based on precisely what was claimed in the form AP1. The FTT then contacts the parties with an extract of the FTT rules, its FAQ sheet, and an example draft Statement of Case

This is a slow process; it can take months for a proper handover from Land Registry to the FTT and for things to start moving; time that would be well spent attempting to reach a resolution

The first direction made by the FTT will be for the Applicant to submit a Statement of Case

The Statement of Case must meet specific criteria, and one particular requirement is that the Applicant should submit all of the key documents on which they rely with it

Importantly, because the form ST4 submitted to Land Registry was sworn as true. Any inconsistencies between that initial administrative application and this legal submission may cause credibility problems later; so it is far better to have a clear case plan from the start and not deviate at this stage

Next, the Respondent has to submit its Statement of Case. If they say it was by consent, here is where they give details. The Respondent’s case isn’t always an easy one to prepare, because they have to prove a negative: if an Applicant says they’ve regularly used a route, and does so convincingly with evidence, it can be near impossible for the Respondent to deny it without some proof that the claimed use was impossible - if their case is ‘we’ve never seen them use it’, it invites the answer ‘well maybe you weren’t looking when we used it’. You can’t argue with that logic

If however they can show obstructions that made the use impossible, or if there is a gap in the evidence, or the use claimed is too infrequent, then there are grounds of opposition available

After this, the FTT will deal with case management, particularly, the exchange of evidence and witness statements, before listing it for a trial to decide whether the case is made out

Of course, settlement can still be achieved at any time, even though costs-wise it might no longer be optimal when deep in FTT directions

But under the pressure of a trial, and once all of the evidence is available, the reality of risk can sometimes ignite discussions

And although the usual rule in the FTT is that everyone pays their own costs, this isn’t the case with an easement registration dispute: these are cost-bearing proceedings under Rule 13(2) - so the loser usually ends up liable for the winner’s costs, and they can be comparable to Court costs

An application for registration of a prescriptive easement is something that can start cheap, but become expensive if it ends up in contentious proceedings; and when it does that, cheap early work can hold the Applicant hostage. 

There’s usually a lot at stake, so if, as a person about to claim a prescriptive right of way, you just know that it’s likely to be contested, then it pays to deal with it properly from day one, rather than trying to make an administrative application and hope your early evidence never gets tested

We’ve seen loads of these. Most are capable of negotiation or mediation before they get tested by a trial, but if a trial is needed, we can handle that, and have done before. For example in Philpott -v- Bovisand [2023] UKFTT 00325 , in which Lee acted for the successful Respondent, opposing a claimed right to access a beach across private land 

We’ve also dealt with them when things are more urgent, and an injunction in the County Court is needed, and the FTT is then bypassed. In those cases, the Court can decide that a right of way exists, and direct Land Registry to record it

And we’ve dealt with the slightly different but occasionally more useful common law concept of ‘lost modern grant’ for creating easements, particularly useful where the 20 year period claimed is a historical one 

If you need some specialist help, either right at the start, or you need someone to pick it up when it becomes contentious, give us a call and see if we’re the right fit for you