Glossary · UK
What is Prescriptive Easement?
An easement acquired not by formal grant but through at least 20 years of continuous, open use of another's land as of right, without permission, force or secrecy.
Full Definition
A prescriptive easement is a right, such as a right of way or a right to run a drain across a neighbour's land, that arises not because it was formally granted in a deed but because it has been used openly, continuously and "as of right" for a long period -- in England and Wales, typically at least 20 years. The doctrine reflects the idea that where a right has been exercised for a very long time without objection, the law should recognise and protect it, both to give certainty to the person relying on it and because the absence of any challenge over such a long period suggests the servient landowner has, in effect, acquiesced to the use. To succeed in a prescription claim, the use must be "as of right," meaning it was exercised without force (nec vi), without secrecy (nec clam), and without the servient landowner's permission (nec precario) -- if a neighbour has simply been kind enough to allow access, or if a landowner used force such as breaking a lock to gain access, or if the use was hidden and not something the landowner could reasonably have known about, a prescriptive claim is likely to fail, since the whole basis of prescription is that the servient owner had a fair opportunity to object but chose not to. There are three separate legal routes to establishing a prescriptive easement in England and Wales, each with slightly different technical requirements: common law prescription (presumes use since time immemorial, effectively 1189, but is easily defeated by evidence the right could not have existed that long), the doctrine of lost modern grant (presumes a grant was made and subsequently lost, based on 20 years' use), and the Prescription Act 1832 (a statutory route with its own 20-year and 40-year periods and technical rules about the exact date proceedings are brought) -- in practice most claims rely on lost modern grant because it is the most straightforward to establish. Once established, a prescriptive easement has the same legal effect as an expressly granted one and should be registered at HM Land Registry to protect it and make it visible to future buyers, since an unregistered prescriptive right, though still legally valid, can be harder to prove and rely on if a dispute arises many years later, particularly if witnesses to the historic use are no longer available.