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1. How prescriptive easements may be acquired
Prescription is the acquisition of a right through long use or enjoyment; the law presumes that the right was lawfully granted. There are 3 methods of acquiring an easement by prescription:
- at common law
- by lost modern grant
- under the Prescription Act 1832
Whichever method is relied on, the user must be for at least 20 years and the points set out below apply.
1.1 User as of right
The use must be without force, without secrecy and without permission (nec vi, nec clam, nec precario). Use while the same person is in possession of the benefiting and the burdened land cannot be use as of right.
1.2 Use by or on behalf of a freehold owner against another freehold owner
There are 2 points here. Firstly, a tenant’s use can establish an easement, but it attaches to the freehold estate. This means that a tenant cannot acquire an easement over other land owned by their landlord; equally, any easement that does arise will not end with the lease. Secondly, where the burdened land is occupied by a tenant, use must have started before the tenancy began.
1.3 Use must be continuous
The use need not be constant but long, unexplained periods of non-use will prevent an easement from arising. Where the claim is made under the Prescription Act 1832, a break is not treated as an interruption in use until acquiesced in for 1 year.
1.4 The right claimed must be one that could have been lawfully granted
This point was considered by the House of Lords in Bakewell Management Ltd v Brandwood ( UKHL 14).
If the right could not have been lawfully granted by deed, such as a right to pollute a river contrary to a statutory prohibition, then it cannot be acquired by prescription.
Section 193(4) of the Law of Property Act 1925 makes it a criminal offence to drive a vehicle over a common. Section 34 of the Road Traffic Act 1988 makes it a criminal offence to drive a motor vehicle over land that is not a road, that is a restricted byway, or over which a public footpath or bridleway runs. However, both offences are committed only if driving over the land is ‘without lawful authority’. Since a right to drive over the land concerned could have been lawfully granted, it can be acquired by prescription.
1.5 Railway land
Since the passing of the British Transport Commission Act 1949, it has not been possible to acquire a right of way by prescription over land owned by the commission and forming an access or approach to, among other things, any station, depot, dock or harbour belonging to the commission (section 57 of the British Transport Commission Act 1949). The references to the commission must now be read to include successor rail authorities and the Canal & River Trust.
2. The operation of the easements when no register entries are made
There is no requirement for register entries to be made in respect of prescriptive easements.
The benefit of all interests subsisting for the benefit of an estate vests in the registered proprietor on first registration (sections 11(3) and 12(3) of the Land Registration Act 2002) and will then pass on a transfer of the registered estate.
Easements arising by common law prescription or the doctrine of lost modern grant will be legal interests. The purchaser of unregistered burdened land is bound by legal interests. Following first registration of the burdened land most legal easements are overriding interests (section 29 and Schedule 3 of the Land Registration Act 2002) and so capable of binding successive registered proprietors of the burdened land.
It is possible for an easement to cease to have effect on a registered disposition if the transferee 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 1 year of the transfer. This does not, however, apply to easements that were overriding interests in relation to a registered estate on the coming into force of the Land Registration Act 2002 on 13 October 2003.
Most prescriptive easements will not fall into the category of easements that cease to have effect as they will be used on a regular basis. However, the possibility of an easement being lost in this way should not be ignored. The entry of a notice in the register of the burdened title will ensure that the easement does not cease to have effect on registration of a future disposition of the burdened land.
3. The register entries that can be made in respect of the easements
Broadly, the register entries we make depend on:
- whether both the benefiting land and burdened land are registered or only one of them is registered
- where the burdened land is unregistered, whether satisfactory evidence of title has been produced
3.1 The claimant’s interest in the benefiting land and the freehold estate in the burdened land are both registered: registering the benefit and noting the burden
A registered proprietor may apply to be registered as proprietor of a legal easement appurtenant to their registered estate. In other words, they may apply to register the benefit of the easement. If the application is in order and, from the evidence we have seen, we consider it to be more likely than not that the claimant is entitled to apply to be so registered, we serve notice of the application on the registered proprietor of the burdened land and on other persons, such as registered chargees, who appear from the register to be interested in the land.
Provided we receive no objection to the notice or notices, we make an entry in the property register for the benefiting land to the effect that this land has the benefit of the easement. If the benefiting land is only part of the land in the title, the entry specifies the part of the registered title that has the benefit of the easement. Such an entry guarantees the existence of the right for the purpose of the indemnity provisions of the Land Registration Act 2002.
At the same time, we enter a notice in the charges register for the burdened land. If the burdened land is only part of the land in the title, the entry specifies the part of the registered title that is subject to the easement.
The entry may not be in the same terms as the right claimed by the applicant in their application. This is because the nature of the prescriptive right is determined by the use (or “user”) from which it has arisen.
Both the entry in the property register for the benefiting land and the notice in the charges register for the burdened land will state that the right was acquired through long use and will refer to the statement(s) of truth or statutory declaration(s) lodged in support of the application, which will be open to inspection.
Typical entries of the benefit and burden might be:
“The land [tinted pink on the title plan] has the benefit of a right of way with or without vehicles over the road at the rear leading into Smith Street. The extent of this right, having been acquired by prescription, may be limited by the nature of the user from which it has arisen.
Note 1: A statement of truth dated 2 January 2014 made by Maria Garcia was lodged in support of the claim to the benefit of the right.
Note 2: Copy statement of truth filed.”
“The [land tinted blue on the title plan] is subject to a right of way with or without vehicles in favour of 33 Smith Street. The extent of this right, having been acquired by prescription, may be limited by the nature of the user from which it has arisen.
NOTE: Copy statement of truth made on 2 January 2014 by Maria Garcia filed under CS259591”.
The claims made in support of the application will be apparent from the supporting statutory declaration or statement of truth.
(A claimant whose interest in the benefiting land is registered could also apply simply to note the burden, and not to register the benefit. They would not need to deduce title to the benefiting land.)
3.2 Only the claimant’s interest in the benefiting land is registered: registering the benefit
As explained in section 3.1, a registered proprietor may apply to be registered as proprietor of a legal easement appurtenant to their registered estate. In addition to the evidence of continuous use as of right, by or on behalf of and against the freehold owners, for a period of at least 20 years, the claimant will need to deduce the title to the burdened land and supply us with the address of the freehold owner. The claimant can deduce title by way of the examined or certified epitome or abstract that would be produced on a sale of the freehold estate in the burdened land. If the application is in order and, from the evidence we have seen, we consider it to be more likely than not that the claimant is entitled to apply to be so registered, we serve notice of the application on the freehold owner of the burdened land as well as on any other person who may have an interest in the land.
If we receive no objection to the notices served and have no reason to believe that any notice has not been received, we can register the benefit of the easement in the same way as if the burdened land had been registered.
Generally, where the claimant does not deduce title to the burdened land and supply the address of the freehold owner, we do not serve any notices. The entry we make in the property register for the benefiting land is in the following terms:
“[Date] The registered proprietor claims that the land has the benefit of a right [terms of right as claimed by claimant]. The right claimed is not included in this registration. The claim is supported by [dates and details of statement(s) of truth or statutory declaration(s) and who has made them].
NOTE: Copy/copies filed.”
We make a similar entry in cases where we have reason to believe that notices that have been served by us may not have been received.
As the form of the entry indicates, we will file copies of the statements of truth or statutory declarations lodged in support of the claim and they may be inspected and official copies obtained in the same way as most other categories of document referred to in the register. Where we similarly noted a claim to an easement in the property register of the benefiting land before 25 March 2002 (under rule 254 of the Land Registration Rules 1925), the entry does not refer to the statutory declarations lodged in support of the claim. However, it is open to the registered proprietor to apply in writing for the entry to be modified so as to refer to the relevant statutory declarations (statements of truth were not then used).
3.3 Only the freehold estate in the burdened land is registered: noting the burden
If the claimant claims to have acquired an easement over registered land, we may enter an agreed or unilateral notice in respect of the easement claimed, in the charges register of the burdened land.
If the claimant is applying for an agreed notice without the registered proprietor of the burdened land consenting to the entry, they should supply an up-to-date, examined or certified epitome or abstract of their title to the benefiting land, as well as the necessary statement of truth or statutory declaration. The registrar must be satisfied as to the validity of the applicant’s claim to enter an agreed notice without the consent of the registered proprietor.
For the difference between an agreed and a unilateral notice, as well as example entries, see practice guide 19: notices, restrictions and the protection of third party interests.
Whether the application is for a unilateral notice or an agreed notice, we will normally serve notice of the entry on the registered proprietor of the burdened land. We may also serve notice of the entry on other persons appearing to be interested in the land.
If a unilateral or agreed notice is entered in the register of the burdened land, any subsequent disposition of the burdened land will take effect subject to the easement, but only if the interest is valid (section 32(3) of the Land Registration Act 2002).
4. Applying for register entries to be made
Original documents are normally only required if your application is a first registration. A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this see practice guide 1: first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.
If your application is not a first registration, we will only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.
However, any original copies of death certificates or grants of probate will continue to be returned.
4.1 Prescribed forms
When the application is being made in form FR1 the application should be set out in brief terms in panel 5, for example:
“Registration of the benefit of an easement, being a right of way with or without vehicles for the benefit of the applicant’s land over the driveway shown coloured brown on the attached plan.”
If the burdened land is registered the title number of the burdened land must be given in panel 2. It may be necessary to extend the depth of the panel in an electronically produced form or to use a continuation sheet form CS.
When the application is made in form AP1, it should be set out in panel 4, for example:
“Registration of the benefit and noting of the burden of an easement, being a right of way on foot only for the benefit of the applicant’s registered title number AB123456 over the passageway leading from the rear over registered title number AB654321 to Acacia Avenue.”
If the burdened land is registered the title number of the burdened land must be given in panel 2. If necessary, either expand the panel on an electronic version of the form or continuation sheet CS.
Where a verbal description leaves any doubt as to the location or extent of the easement, a plan must be supplied based on the largest scale Ordnance Survey map for the area in question. The description of the right claimed should refer to a plan on which it is clearly and carefully marked.
As explained, we may have to make some alteration to the wording used in the application form when drafting the register entries.
When on first registration, or registration of a disposition, entries in respect of prescriptive easements are desired but it is not clear from the form FR1, form AP1 or form AN1 or otherwise that such entries are sought, none will be made. Inclusion of a statutory declaration or statement of truth in the documents accompanying the application, with no explanation in the application form or a covering letter why it has been included, will not be taken as an application to make register entries. Such applications are often time-consuming and in many cases require notices to be served on other landowners. This will only be done where the applicant has made it clear that they are seeking the registration of the benefit of a prescriptive right.
4.2 Statements of truth or statutory declarations
Before we register the easement or enter an agreed notice when the registered proprietor is not the claimant and has not consented to the entry, we need to be satisfied that the easement has been acquired.
For this purpose, the claimant must produce evidence, in a statement of truth or statutory declaration, of continuous use as of right, by or on behalf of and against the freehold owners, for a period of at least 20 years. The statement of truth or statutory declaration must set out in detail the use and enjoyment relied upon to substantiate the claim. The right claimed must be one that could have been lawfully granted. The application will proceed no further and will be cancelled if such evidence is not produced.
(Of course, even if the claimant produces this evidence, it does not mean an easement has necessarily been acquired. Where the claim is based on common law prescription, the owner of the burdened land may be able to establish that the right could not possibly have been exercised from 1189 onwards. Where the claim is based on lost modern grant, the owner may be able to establish that nobody could have lawfully granted the easement. In these cases, there is no easement.)
In some cases, two or more statements of truth or statutory declarations may be necessary (for example, by successive estate owners where evidence of use during their respective periods of ownership is required to make up the required period of 20 years or more).
All statements of truth or statutory declarations drawn up for the purposes of a prescriptive easement application should either:
- include a statement that, to the best of the knowledge and belief of the declarant or person making the statement, the right has always been exercised without force, secrecy or permission
- give details of the facts that prevent the claimant from being able to make this statement
Form ST4 is a statement of truth designed to provide a framework for the information that must be included within an application concerning a prescriptive easement. Its use is not obligatory, and using it will not guarantee the success of the application it accompanies, but it will help you ensure that nothing has been overlooked.
However, any statement of truth that meets the requirements of rule 215A of the Land Registration Rules 2003 (see Statement of truth) will be acceptable, as will a statutory declaration.
It should be appreciated that a prescriptive right of way can only be acquired to the same extent as the use which is relied upon. Therefore, if the statutory declaration shows that the use was limited to being on foot only, or for some particular purpose (for example, to get to and from a garage on the benefiting land), the register entries will reflect that limitation.
An inspection fee may be payable in addition to the application fee if we decide an inspection is necessary. If so, we shall request it once that decision has been made and the application will not be able to proceed until the inspection fee is received.
5. The effect of an objection to the application
If we receive an objection from any person on whom we have served notice of an application to register the benefit of an easement, and the objection is not groundless, we cannot proceed with the application unless and until that objection is disposed of in the claimant’s favour. The claimant is notified of the objection and the grounds on which it is made. The claimant then has the 3 options listed below.
Similarly, if an agreed or unilateral notice is entered, a person on whom we have served notice of the entry (or any other person) applies for cancellation of the agreed or unilateral notice, and the claimant objects to the cancellation, we cannot proceed with the application for cancellation and the applicant has the same three options.
5.1 Withdraw the application altogether
In this event, we cancel the application, return scanned copies of the papers lodged and advise the objector of the cancellation.
5.2 Seek to negotiate a settlement of the dispute direct with the objector
Parties are encouraged to resolve disputes without the need for formal procedures wherever possible. HM Land Registry does not provide any formal mediation but efforts will be made to identify the issues in any dispute and see whether there is any common ground between the parties and whether agreement could be achieved. However, disputes cannot be allowed to continue indefinitely and, unless progress towards a settlement is being made, the dispute will be referred to the tribunal.
5.3 Have the dispute referred to the tribunal
Under section 73(7) of the Land Registration Act 2002 any dispute that cannot be dealt with by agreement must be referred to the tribunal. Unless the parties reach agreement beforehand it will either:
- hold a formal hearing and give a ruling on the dispute that is binding on the parties (subject to any appeal) in the same way that a court judgment would be
- order one of the parties to the dispute to commence court proceedings to have the dispute resolved. practice guide 37: objections and disputes: HM Land Registry practice and procedures and practice guide 38: costs in disputed applications give more information on this subject.
6. Rights of way acquired under the Vehicular Access Across Common and Other Land (England) Regulations 2002 and the Vehicular Access Across Common and Other Land (Wales) Regulations 2004
These regulations, made under section 68 of the Countryside and Rights of Way Act 2000, provided for the creation of a legal easement, giving a right of way for vehicles in cases where the use would have given rise to a prescriptive easement had it not constituted an offence.
Section 51 of the Commons Act 2006 repealed section 68 of the Countryside and Rights of Way Act 2000 with the effect that the regulations lapsed at the same time. Section 51 came into force on 1 October 2006.
7. Statement of truth
A statement of truth is a method of providing evidence in support of an application. As a result of changes made by the Land Registration (Amendment) Rules 2008, it can be accepted for land registration purposes instead of a statutory declaration.
Its adoption by HM Land Registry follows the precedent set by the civil courts in accepting a statement of truth as evidence in place of an affidavit or statutory declaration.
See Applying for register entries to be made regarding retention of documents sent to us.
For land registration purposes, a statement of truth is defined as follows (see rule 215A of the Land Registration Rules 2003):
- it is made by an individual in writing
- it must be signed by the person who makes it (unless they cannot sign – see Statement of truth made by an individual who is unable to sign it)
- it need not be sworn or witnessed
- it must contain a declaration of truth in the following form: ‘I believe that the facts and matters contained in this statement are true’
- if a conveyancer makes the statement or signs it on someone’s behalf, the conveyancer must sign in their own name and state their capacity – see Signature by a conveyancer
7.2 Statement of truth signed by an individual who is unable to read
Where a statement of truth is to be signed by an individual who is unable to read, it must:
- be signed in the presence of a conveyancer
- contain a certificate made and signed by that conveyancer in the following form:
“I [name and address of conveyancer] certify that I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who signed it or made [his] or [her] mark in my presence having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.”
7.3 Statement of truth made by an individual who is unable to sign it
Where a statement of truth is to be made by an individual who is unable to sign it, it must:
- state that individual’s full name
- be signed by a conveyancer at the direction and on behalf of that individual
- contain a certificate made and signed by that conveyancer in the following form:
“I [name and address of conveyancer] certify that [the person making this statement of truth has read it in my presence, approved its content as accurate and directed me to sign it on [his] or [her] behalf] or [I have read over the contents of this statement of truth and explained the nature and effect of any documents referred to in it and the consequences of making a false declaration to the person making this statement who directed me to sign it on [his] or [her] behalf] having first (a) appeared to me to understand the statement (b) approved its content as accurate and (c) appeared to me to understand the declaration of truth and the consequences of making a false declaration.”
7.4 Signature by a conveyancer
Where a statement of truth is made by a conveyancer, or a conveyancer makes and signs a certificate on behalf of someone who has made a statement but is unable to read or sign it:
- the conveyancer must sign in their own name and not that of their firm or employer
- the conveyancer must state the capacity in which they sign and where appropriate the name of their firm or employer
8. Things to remember
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