February 6, 2018

Prescriptive Rights of Way – an easing of the evidential burden?

Posted in Real Estate

It is often the case that a landowner’s exercise of a right of way over a neighbour’s land is challenged and there is nothing in writing to evidence the right. This is not necessarily fatal to establishing a right of way as in certain circumstances it may be possible to establish a right of way under the law relating to “prescription”.

A prescriptive right of way (or other types of easements) is essentially a right established by long and continuous use.

The law relating to rights of way by prescription is complicated but essentially a person has to establish 20 years’ continuous use of a right of way (which can include predecessors in title) with no significant interruptions and the right must have been exercised “as of right” (i.e. openly, without force and without permission).

It is for the party claiming to have acquired the right of way by prescription to prove that the use was “as of right” and evidentially this has often caused difficulty.

A case on appeal in the Upper Tribunal last year, Welford and others – v – Graham and another [2017] UKUT 297(TCC) held that when considering the burden of proof in relation to an alleged right of way by prescription, although the legal burden of proof that the use was “as of right” rests with the party seeking to establish the right of way, where that party had successfully proved that its use had been open for the required period , a rebuttable presumption arose that such use was not with the permission of the other landowner.  It would still be possible for the other party to call evidence that there had been permission or that the use was contentious in order to rebut that presumption.

The Welfords were successful as they had provided evidence establishing that the yard in issue had been used openly and without interruption for a sufficient period of time in order to gain access to a building previously used as a workshop. They had the benefit of an evidential presumption that the use was “as of right” and the Grahams could not adduce evidence to rebut that presumption. The Welfords had therefore discharged their legal burden.

The decision in Welford should assist those claiming prescriptive rights as it is now clear that a party does not have to call evidence to disprove the existence of an express permission or force at any time during the period of 20 years. However it is worth noting that the burden of proof still rests with the party seeking to establish a prescriptive right of way and such claims will still need to be properly evidenced.

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