Can You Claim Adverse Possession on a Right of Way?

Adverse possession is a legal principle that can potentially allow a person to claim ownership of land that they have continuously and openly used over an extended period, without the owner's permission. One specific scenario involves claiming a right of way through adverse possession, also known as an easement. This article will explore the conditions under which a right of way can be claimed through adverse possession in the United Kingdom, particularly in England.

The Conditions for Claiming a Right of Way Through Adverse Possession

Adverse possession can be used to establish a right of way, which is a privilege to use someone else's land for a specific purpose, such as to access a property. In England, a claimant must meet several conditions to establish the right of way through adverse possession:

Without Permission: The use of the land must be without the landowner's permission. Without Secrecy: The use of the land must be open and notorious, meaning the owner would be aware of the use. Without Violence: The use of the land must not be violent or destructive. Continuous: The use must be continuous for 20 years or more. As of Right: The use must be done in a way that a reasonable person would consider the use to be the right use, as opposed to an unauthorized intrusion.

Challenges and Considerations for Continuous Use

The condition of continuous use for 20 years is a significant challenge for many claimants. It is not necessary to be walking back and forth across the land 24/7; however, the use must be regular and in the open. The key is that the landowner must be able to prove to a Court that you were trespassing and could be stopped.

Regular, open use is necessary to demonstrate that the right of way is being established through adverse possession. If the landowner observes the use of the land and immediately takes action to prevent it or justifies using it without charge (even informally), it could defeat the creation of an easement. This means that the claimant must be visible and obvious in their use of the land to ensure the ongoing establishment of the right of way.

Real-World Implications and Case Studies

Suppose, for example, that Person A has been using a small path that crosses Person B's land to access a public footpath for 20 years. Person B has never complained about this use in any way. In this scenario, Person A might be able to claim an easement, assuming all other conditions are met.

Another example might involve a long-standing utility company that has used a public right of way to lay fiber optic cables for 25 years. Though they have not paid any land rent, they have used the land without the permission of the landowner. If the landowner wishes to challenge this use, they must demonstrate that they have not been using the land as a right of way, but rather as an unauthorized intrusion.

Conclusion

Adverse possession can be a powerful legal tool for claiming a right of way in the United Kingdom, but it requires careful attention to the details. The use of the land must be continuous, open, and consistent over a 20-year period. Ensuring that the use is visible and obvious to the landowner is crucial to protect the continuity of the claim. Legal advice should be sought when considering adverse possession to ensure that all the requirements are met and to navigate the legal complexities involved.

Related Keywords

adverse possession right of way easement