Easement by Prescription

Prescription is the acquisition of a legal right through long use, on the presumption that the right was lawfully granted at some point in the past even though no grant can be produced. HM Land Registry's Practice Guide 52 identifies three separate legal routes by which a prescriptive easement can arise: at common law, by the fiction of 'lost modern grant', or under the Prescription Act 1832. Whichever route is relied on, the use must have continued for at least 20 years and must be 'as of right' — that is, without force, without secrecy and without permission, often expressed by the Latin tag nec vi, nec clam, nec precario. Use cannot be 'as of right' while the benefitting and burdened land are in the same ownership.

The Prescription Act 1832 itself sets out statutory periods rather than simply codifying the common law: under section 2, a claim to a way or other easement cannot be defeated merely by showing that the use began less than 20 years before the claim, provided the right was 'actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years'. Where the use has continued for a full 40 years, the right becomes 'absolute and indefeasible' unless it was enjoyed under a consent or agreement expressly given by deed or in writing. Because prescriptive easements arise by operation of law rather than by an express registrable grant, HM Land Registry notes that they generally take effect, and can bind successive owners of the burdened land, without needing to be completed by registration.