A prescriptive right may not be enough?

United Kingdom
04/07/2000
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Whilst prescriptive rights may be a benefit of the land, they are not always adequate. Two instances where the benefit of such a right may be effectively lost are as follows:

1. Change of Use

As discussed in the 2000 High Court decision of Attwood -v- Bovis Homes Limited a radical change of use may extinguish a prescriptive right. In this case a drainage right was not extinguishable by a housing development as it was found there was no increased burden on the land which is subject to the right. However the case recognised that such a right may be extinguished by a change of use. Therefore if you are buying land for development which currently benefits from a prescriptive right which you intend to rely on for the new development you should consider carefully whether the right will be extinguished by virtue of the development.

2. Rights to enter and repair

Although you may benefit from a prescriptive right to use, for example, a road on someone else's land, there is little that can be done if the road becomes unusable. The prescriptive right will not enable you to enter onto the land and carry out any repairs if the landowner itself does not carry out the repairs e.g. if they no longer use the road themselves. Therefore, the prescriptive right to use the road becomes of no practical benefit.

For further information on this topic, please contact Angela Watts at [email protected] or on +44 (0)20 7367 3000.

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