Occasional Use Sufficient to Preserve Access Right

When a road or pathway is regularly used by people and the owner takes no active steps to prevent this or assert control over the land concerned, an ‘easement by prescription’ can be created under which the right of access becomes lawful and the landowner loses the right to prevent it.



For this to occur, the person claiming the right of easement must show that the use has continued for at least 20 years and it must be of such frequency that a reasonable person would conclude that the right of access is being exercised.



But how frequently is that?



In a recent case, a right of easement was asserted over a farm track which had been used at least once a month between 1971 and 1988. The land which benefited from the access was then sold and the new owners used the access much less frequently.



The court accepted that the continuing use of the track would have been evident to the owner of the land and that even occasional use was sufficient to preserve the right of easement.