The recent case of Viscido and others v Raimondo (2025) First Tier Tribunal has reinforced the importance of affording the ‘ouster principle’ due consideration when pursuing or considering a claim for an easement by prescription.
Easement by Prescription
What constitutes an easement is a principle that most are familiar with.
It is a proprietary right enjoyed by one parcel of land, the dominant tenement, over another parcel of land, the servient tenement.
An easement allows the dominant owner to use the servient land in a specific way, for example, to pass and repass, lay and maintain pipes, park, or receive light without conferring possession or ownership of that land.
Easements “run with the land,” binding successors in title.
An Easement by Prescription is, perhaps, a less familiar term.
In essence, an easement claimed by prescription is a private right over another’s land, the servient tenement, that is established by long, uninterrupted use “as of right” rather than by express grant or reservation.
There are three recognised routes in England, each requiring at least 20 years’ qualifying use, for pursuing a claim in prescription:
- Common law prescription
- Lost modern grant
- Prescription Act 1832
The purpose of this Article is not to consider the limbs which are required to be satisfied to establish a successful Claim in Prescription, but to draw attention to the often overlooked concept of the Ouster Principle, which is of fundamental significance when considering if a Claim for a prescriptive easement should be pursued.
The Ouster Principle – When a right goes too far.
Viscido and others v Raimondo (2025) has stressed the importance of practitioners pausing and considering if any ‘use’ claimed amounts to ‘ouster.’
If it does, the right claimed is simply not capable of standing, in law, as an easement.
The ouster principle is legally incompatible with a right capable of being an easement and is, therefore, fatal to any claim.
So what is the ‘ouster principle’?
Essentially, the ouster principle is the rule that a right claimed as an easement must not amount to, or be tantamount to, exclusive possession of the servient land or substantially deprive the servient owner of possession or control of it.
If the purported easement would effectively “oust” the servient owner from the relevant land, leaving no meaningful residual possession, control, or reasonable use, the right is not capable of existing as an easement.
The recent case should act as a word of caution that, before advancing with a Claim, thought must be given to whether the right claimed amounts to joint occupation or if it substantially deprives the servient owner of possession or a reasonable use of the land.
If it does, then there is a very real risk that a claim in prescription will fail.
At Dyne Solicitors, we regularly deal with both defending and establishing easements by prescription. For more information, please contact Catherine Gregson.