In a previous article, I briefly outlined the implications that the newly defined grey belt may have for access rights.
I touched upon potential consequences in a scenario whereby a newly unlocked site may already have a pre-existing expressly recorded right of way servicing the area – but what if you did not know that your land has been burdened by a right of way?
This article considers a right of way being secured by way of prescription and what you can do to circumvent any claim to such a right.
What is a prescriptive right of way?
A Supreme Court Judge rather perfectly described rights being acquired by prescription as relying on ‘a mixture of inconsistent and archaic legal fictions, practical if sometimes haphazard judge made rules and well-meaning but ineptly drafted statutory provisions’ to determine if they exist.
I feel that any discussion concerning a prescriptive right of way should be flagged with this warning!
The position, as to if a right of way by prescription has arisen, is not always clear cut and is open to the scrutiny and discretion of the Court.
The basic premise, however, is that if there is no express recording of a right of way and a user has particular route which has been used:
- For a period over 20 years
- Without force
- Without secrecy
- Without permission
then there is an argument to say that a right of way by prescription has arisen.
Why is this a problem?
A right of way acquired by way of prescription can be damaging for a landowner seeking to develop their land – or even enjoy their land without any interference.
Previously unburdened land will be subject to the prescriptive right (if proven) which can become as enforceable and as permanent as an express right of way.
Any development or use will have to be sympathetic to that right. The landowner will have to allow unfettered access along the right of way – they cannot restrict, prevent or interfere with the use of the same.
This could have immense financial implications for an intended development plot with developers having to reconfigure development plans or enter into protracted negotiations with those with the benefit of the right of way to secure the removal of the right (or a redirected route).
What can you do to prevent a right of way by prescription being accrued?
When faced with the suggestion of a right of way being acquired by prescription, the landowner of the burdened land will need to demonstrate that either they have granted a permission for the right to be used or that the use was with force or secrecy.
This article does not consider the circumstances whereby permission has been granted.
Secrecy
If a right is used in secret, this is down to the conduct of the user.
There is nothing that a landowner can do to influence this – a landowner can’t force someone to use it in secret and nor can they construe use in that manner if it simply has not happened.
The best that a landowner can do in this regard is expose any use that has been conducted in secrecy, such as the use only occurs at night under the cover of darkness, or that the user only uses the access when they know that the landowner is not there.
Force
A landowner has more options available to them to demonstrate that the use has been with force.
A common misconception of this limb is that there must be some physical show of force – such as erecting a barrier or confronting the user to verbally communicate your objection to the situation.
Even though these are possible means of conveying that the use is done in the face of an objection (so by force), the law does not expect landowners to place themselves in a position of confrontation.
This is not the intention. The law is not encouraging fallouts.
One relatively simple way to communicate an objection to use is through signage.
Appropriately worded and positioned signage can be sufficient to prevent a user from establishing a prescriptive right of way.
This is a simple means available to all landowners which offers a consistent message as to the use of their land.
Considerations for signage
The Courts have determined that simply having a sign is not sufficient.
There must be thought behind the sign.
The sign must be specific to a particular parcel of land, it must be directed at a particular user, and it must be clear as to its objections.
It must be obvious and clear as to what use is objected to.
The landowner has to give some thought as to the wording of the signage.
A landowner may consider, for example:
- If the wording is robust enough to amount to an objection
- If the wording is clear and the message is understood in ‘layman’s’ terms
- If the wording is specific – does it apply to a particular user or is it a broader objection. Essentially, will the user understand that the objection is directed to them
- If the locus of the signage suitably placed – is it ‘in the face’ of the user
- If the wording captures all variations of a right which may accrue
- If the objection is fanciful
- If the sign is historical (becomes obsolete/passive) or has been erected for the purpose of objecting.
The question is not, therefore, can signage prevent a prescriptive right of way arising but rather – is the sign used and the motivation of the placing of the sign enough to amount to an objection.
Can a prescriptive right of way be intensified?
A real concern for a landowner who has suddenly found that their land is burdened by a prescriptive right of way is can the prescriptive right be intensified?
This will be given further consideration in a follow up article.
For further information and advice, please contact Catherine Gregson today.