20th February 2013

Be aware of who is using your land

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20th February 2013

Be aware of who is using your land


An easement, amounting to a legal interest which binds third parties, may be acquired where an activity is carried out affecting the land of a third party, for a sufficient length of time.  One of the key requirements in establishing a right is that the continuity of use must be of sufficient character, degree and frequency.

The issue of what “continuity of use” amounts to in practice was considered in the recent case of Orme v Lyons [2012]. Lyons claimed that they had the benefit of a vehicular right of way over a track on Orme’s property. Orme disputed this claim on the basis that Lyons hadn’t shown use of requisite frequency.

The issue came before a District Adjudicator to the Land Registry who concluded that given the nature of the track, it was the width of a typical country lane, was open at both ends and contained wheel tracks or ruts along its length, Lyons’ use was sufficiently regular to indicate they were asserting a continuous right to drive over it despite:-

  1. Lyons only using the track on odd occasions from April 1989 to the late 1990’s;
  2. The track only being used as an alternative way out of Lyons’ property when the main entrance was blocked; and
  3. 3 Lyons only using the track as little as once a week when building works at Lyons’ property resulted in the blocking of the main entrance.

Significantly, there was no strict requirements that Lyon needed to be driving up and down the track every week or month.

This case emphasises the fact that landowners need to be alert to the possibility of neighbouring properties acquiring rights over their land (which bind them, any mortgagee and future owner of the property) despite what appears to be infrequent or casual use.

If you wish to discuss any of the issues raised by this blog please contact David Eminton at david.eminton@parissmith.co.uk.