I have walked over a neighbour's land for 30 years; I don't have an express right of way, but can they stop me from walking over their land now?
This is a question we encounter frequently, as it's a situation that many find themselves in. Whether it's walking or driving over land, parking on land you don't own, or even mooring a boat where the securing rope hangs over someone else's land, these issues are not uncommon.
So what is the legal position, and does the fact that the neighbour, who is often a new owner, suddenly challenges the use mean it has to end?
Each case depends on its facts, but in very general terms, if you have exercised your right for over 20 years without force, secrecy, or permission from the other landowner, you may be able to establish a legal right through long use.
Establish if you have a claim
The starting point would be to talk to the other landowner to see if an agreement can be reached. If that is impossible, early legal advice should be sought to establish whether you can claim a right based on long use (also known as a prescriptive easement).
The three requirements, without force, without secrecy and with no permission from the other landowner, can be tricky to overcome and prove. This can be particularly problematic if you have different landowners over the 20-year period and if there has ever been an interruption in use.
If you have been crossing someone else's land, it is unlikely that you have any documentary evidence and have never taken photos of you exercising the right. Can you prove that you have walked over the land regularly and that the landowner must have known? What if the other landowner is absent and never there? Can that really be said to be transparent and obvious to them?
Issues can also arise if the landowner does realise part way through the 20 years and puts up a sign prohibiting any trespass or use of the land. Depending on the words used on the sign, the sign can actually make the continued use "contentious" and stop the 20 year period from running.
Register your right
Ultimately if you do have a claim for a right based on long use, and you cannot get the neighbour on board with documenting that right, then you may want to think about applying to HM Land Registry to register that right. HM Land Registry will serve notice of the application to the neighbour, and they can object to the registration. If that happens, the case will then be referred to the Property Tribunal, and if no agreement can be reached, a decision will be made on whether the right should be reregistered.
If you think you have acquired a right through long use, we can help you navigate the registration process.
