Obtaining a right by prescription means you are granted the right to do something, simply by the passage of time. For example, if you have used a passageway behind your house for many years but without the legal right to do so, it is possible to claim that you have the right to continue to use it due to the length of time that you have done so.

Two recent cases show how difficult it can be to acquire this right however. Both these cases involved an application to Land Registry by a landowner to register a claimed right of way by prescription against the title of the land claimed to be subject to it. In both cases the owners of the land claimed to be affected objected to the registration.

In Welford the applicants had only acquired the land after 2002, and could give no evidence of use themselves. Although use without consent could be proved from 1978 to 1988, the subsequent user of the right was now dead and there was thus no proof i.e. confirmation from him, that the user was without consent for the period after 1988. The claim to the right of way was therefore rejected.

In Wilson, the issue was once again the matter of consent – or lack of it. There was evidence of use without consent from 1976 to 1980 but evidence was also accepted that oral consent had been given in about 1982. But the consent had not been requested by the then user. The judge said an unsolicited permission would be sufficient to stop the use being as of right from then on.

It is therefore clear that very strong evidence is needed to establish a prescriptive right. And you must be very sure of your evidence before making an application to Land Registry.

Equally, when buying a property which relies on a claim to such a right an indemnity policy is essential. At the very least it will result in the payment of compensation in respect of the reduction in the value of the property if anyone prevents you from using your right. If you would like more advice on this, please call our property team on 01606 74301.