Prescriptive Rights Of Way – An Easing Of The Evidential Burden?

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).