Easement and non rebuttable

[Trainerman]

Hello everyone. If there is someone who can point me in the right direction about easements, then I would be grateful.

Specifically, it concerns a group of residents who park on a plot of land. New owners are trying to stop this. However, we have written statements from former residents that clearly show up to 46 years of constant use for residents parking, and no permission ever involved. My own reading of the Prescription Act says this leads to a non rebuttable claim for an easement.

How does that work? I know enough to realise it involves application to the Land Registry, but how does the non rebuttable bit work? Surely, when the new owners object, it will still end up in court?

Thanks for any help

[des8]

If you can show over 40 years of use the only rebuttal is if the landowner can produce a deed or evidence of written permission for its use.as per section 2 of The Prescription Act 1832

Can each of you show the owner( or previous owner) of each property using that land has used it for over 40 years.
Just because the owner of house 1 can do that, it will not automatically mean that owner of house 2 benefits.

Land registry guide: https://www.gov.uk/government/public...y-prescription

[Trainerman]

Hello Des8, thank you for your reply. The short answer is that two of four properties now have written statements that go to over 40 years, and easements are being applied for for those two properties. For various reasons, these two easements would take the heat out and give time for other property owners to look for answers. However, for the two applying properties, this 'non rebuttable' thing is confusing and I was hoping for a little help as to process. My guess is that the new owners will want to deny it and go to court....so how is 40+ years non rebuttable? Is it literally a different process? Thanks

[des8]

Section 5 of that link to Land Registry gives the low down on what happens if an objection is raised to registering an easement

Basically the parties can come to an agreement or refer the matter to the tribunal
The tribunal will either come to a decision which is binding, or order one of the parties to the dispute to commence court proceedings to resolve the dispute

Non rebuttable comes from sec 2 of the prescription Act where it states:" where such way ..... shall have been so enjoyed ..... for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing".

[Trainerman]

Thank you very much Des8 for giving a steer on that. If I read that correctly it means that the other side's only hope of rebuttal would be if there was some written agreement or note in resident's deeds. I know for a fact that no such writing exists. Thus I reckon they would be foolish to even try to go to Tribunal, but time will tell.

Belated thanks, due to being laid low by the dreaded Covid.

[des8]

Trust you make a speedy recovery

[Trainerman]

Back to my old self at last, and again thanks for all the help. I also have a question on contract law, with regard to parking so I am going to start a new thread in the appropriate place. Thanks again

[Trainerman]

This is by way of an update and further enquiry. I have added to the existing thread, but if I should start a new one I will.

We have heard from Land Registry about the application, but only to ask for binding statements of truth with the approved wording. This does though show some progress. I assume that the 'other side' have also been contacted. However, they are steaming ahead with actions that place physical barriers in our way. So my request for help is twofold :-
1) IF we gain the easement, but in the meantime barriers are put in the way, do we have any right to remove them?
2) Is there any mileage in Human Rights act, as our complaints to the council have been ignored and surely they have a duty to help protect our property? eg. At least one house will have been devalued by this.

Thanks again for any help with finding a direction to go in !

[des8]

Assuming you are successful at Land Registry the correct way to have the obstructions removed is to write (1st class with free certificate of posting from PO) to land owner asking him to remove the obstruction within 14 days.
In the same letter you tell him that if he does not comply an application will be made to court for an injunction to have him remove said obstructions, together with an order for adverse costs.

If you consider this might be necessary I suggest you collect evidence now that the owner is the person causing the obstruction. Applications have been denied when the obstructer has denied ownership of the obstruction.

This has nothing to do with the council as it is a private matter between individuals, so not surprising they ignore complaints

[Ukmicky]

Thank you very much Des8 for giving a steer on that. If I read that correctly it means that the other side's only hope of rebuttal would be if there was some written agreement or note in resident's deeds. I know for a fact that no such writing exists. Thus I reckon they would be foolish to even try to go to Tribunal, but time will tell.

Belated thanks, due to being laid low by the dreaded Covid.

Or your evidence of use is factually incorrect.


this also has nothing to do with the council.