‘Prescriptive rights’ are often treated as old-fashioned law, but having seen the issue arise on three very different matters in a single week, it has been a timely reminder that they remain highly relevant in modern property practice. Given that access and parking rights so frequently arise, it is hardly surprising. 

What struck us across those three matters, was how ordinary the problem looked at first. In each case, the route or parking area had simply always been used. The property owner had never thought of it as controversial. Nobody had been stopped. Nobody had gone back to the old deeds every year to check the wording still matched what was happening on the ground. It was only when a transaction came into view that the awkward question surfaced: where is the actual legal right?

That question is surfacing more often now because older property is being repurposed more readily than before. Since the March 2024 changes to Class MA permitted development rights in England, the route from commercial use to residential use has widened, with the removal of the former 1,500 square metre cap and the previous three-month vacancy requirement. As more older buildings are adapted and sold on the basis of changed or intensified use, old conveyances and historic arrangements concerning access and parking are coming under closer scrutiny.

Auction sales add to that pressure. The auction market has grown strongly, with EIG reporting that lots sold increased from 25,375 in 2023, to 28,063 in 2024; in the same period total funds raised rose from £4.8 billion to £5.5 billion. Speed is part of the attraction, but speed also means title issues come into focus very quickly. If access depends on “we have always used it”, that may not be enough once a buyer’s solicitor asks to see the legal basis.

That is where ‘prescriptive rights’ may save the day.

In simple terms, a prescriptive right is a right acquired through long use. HM Land Registry’s guidance recognises that an easement may arise through at least 20 years’ qualifying use, provided the use has been “as of right”, meaning without force, without secrecy and without permission. In practice, that often means a track, lane, yard or parking area that has been openly used for many years, even though the modern title paperwork does not clearly spell out the right.

The real difficulty is that these issues often lie hidden until the moment a sale, lease, refinance or auction forces them into the open. The owner is rarely trying to invent a right that was never there. More often, they are trying to prove a right that has simply always been used; the route has always been driven over, or the rear area has always been used for parking etc. The property has always functioned that way in practice. It is only when the paperwork is examined closely that the gap between practical reality and legal title becomes obvious.

Prescriptive rights do not create certainty out of thin air and they still depend on evidence. HM Land Registry’s guidance makes clear that statements of truth or statutory declarations are the usual evidence used to support a prescriptive easement claim. Long use alone is not a magic wand. The use has to be of the right legal quality and the scope of the right may be shaped by the actual use from which it arose.

But the practical lesson is simple; do not assume the title says what everyone thinks it says! Where access or parking matter to the value (or use) of a property, check. The hardest cases are often not the ones where nobody ever used the route, they are the ones where it was used for so long that nobody thought to ask where the right came from - until the deal was already underway.

Matt and Dawna are solicitors in Pardoes’ Commercial Property team. If you would like to discuss a commercial or agricultural property matter with them, please get in touch in one of the following ways: enquiries@pardoes.co.uk or 0800 862 0442.