PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
When land has been used by someone who has no legal entitlement to use it for 20 years without interruption, an ‘easement’ can arise under the Prescription Act 1832. In principle, an easement gives the legal right to continue the use indefinitely. For an easement to arise, the use must be open (not secret), without force and without the permission of the owner of the land. A lease cannot therefore create an easement.
It is therefore not uncommon for legal rights of use of land to arise without any intent, as a recent case illustrates. It involved a local council which allowed, for a period of more than 20 years, the parking of cars on its land. Despite the fact that the title to the land had subsequently been passed to a new owner, and on his death to his wife, and that a subsequent lease had been agreed over the land in 2004, the earlier use for car parking for more than 20 years was sufficient to create an easement over the land and this passed with the title to it.
An argument by the council that the use of the land had effectively ‘ousted’ it from its own property was also rejected. The court ruled that the council could have used the land for other purposes, but it did not.
The message for landowners is clear – if you allow others to occupy your land on a casual basis for a long period, you may lose the right of exclusive use and occupation.
If you are acquiring land, it is important to research thoroughly its use as rights may have arisen over it and the owner may be unaware of them.