The role of prescriptive rights in property law and why they are important when it comes to property development

As with any property purchase, developer purchasers will want to know that the land they are buying has all the necessary rights for development and for the enjoyment of the ultimate homeowners once the project is built.

Most commonly this would be by way of formal easements.  However, land can also benefit from undocumented rights (prescriptive easements) which may be relied on instead. Prescriptive easements are acquired between freehold owners for uses enjoyed for a full period of 20 years ‘as of right’, rather than as a result of force, secrecy or permission of the owner of the land subject to the right.

Determining the extent of prescriptive rights

The extent of a prescriptive right must relate to what has been proven to have been enjoyed. It is not limited to the precise ways in which it has been used, and may be used for equivalent or other purposes which impose no greater burden on the land subject to the right (Servient Land). However, this does not mean that by establishing a particular right, the beneficiary will then automatically become entitled to lesser rights on the principle that the greater includes the lesser.

Can the user be changed or intensified for the purpose of development?

Any proposed change of user of the land with the benefit of the right (Dominant Land) must pass the “McAdams Test” (McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, [2004] All ER (D) 467 (Feb)) which states that a prescriptive easement can be relied on where the use of the Dominant Land was changed which did not amount to a radical alteration in the character of the Dominant Land and did not substantially increase the burden on the Servient Land.

The cases of Cowling v Higginson (1838) 150 ER 1420 and Williams v James (1867) LR 2 CP 577 confirmed that a right may be for either a limited purpose or at all times.  However, once the right has been established it cannot be enhanced and impose additional burden on the Servient Land. It is not guaranteed that a prescriptive easement will be sufficient for the intensification of use that comes with most developments.

Are there other downsides to relying on prescriptive rights?

As there is no express agreement between owners with a prescriptive easement, there is no obligation to repair the Servient Land (or part thereof) that is used by the Dominant Land. Although the Dominant Land will have an implied right to repair the Servient Land (or the relevant part(s)), it will have no right to improve it.  This is likely to be an issue for developers who will be subject to strict planning conditions.

Potential solutions

1. Approach the owner of the Servient Land for a formal deed of easement. They may require a premium or at the very least that the developer cover their legal costs in granting the rights. It is if course also possible that the owner will query the rights claimed; or

2. Apply to register the prescriptive right at HM Land Registry, supported by a statutory declaration. This can be challenged by the owner of the Servient Land, and the application will not be processed until the matter is resolved. If the parties cannot reach an agreement then the claim will be referred to the Land Registry tribunal, which will either hold a formal hearing and give a binding ruling (subject to any appeal) or order one of the parties to commence court proceedings to have the dispute resolved; or

3. Obtain defective title insurance. This option can only be used where the first two options have not been utilised.

Conclusion

Whilst in some cases it may be possible to rely on prescriptive rights for carrying out smaller developments, each case will be examined on its own facts and will not be conclusively determined until the right is formally claimed or the development is opposed, which may be a costly and lengthy process and jeopardise the development. As such, prescriptive rights cannot be relied on absolutely, and understandably plot purchasers may also be uneasy relying on them.

Obtaining a formal deed of easement from the owner of the Servient Land or, where a developer does not yet own the land, ensuring that the transfer of the land to it includes all the necessary rights, remains best practice.

This article first appeared in Property Wire.