Easements, prescriptive rights of way and lost modern grant

What an easement is

An easement is a right that one piece of land has over another. The land with the benefit is called the dominant land and the land that carries the burden the servient land. A right of way across a neighbour's yard, a right to run a drain under it, a right to light through a window: each is an easement if it meets the legal requirements.

Two features matter for a business. First, an easement attaches to the land, so it passes to whoever owns or occupies the dominant land and binds whoever owns the servient land, without anybody signing anything. Second, it has to benefit the land itself. A right for a particular company to park wherever it likes is a licence; a right for the occupier of unit 4 to use the access road is an easement.

The right has to be capable of forming the subject of a grant, which in practice means it must be reasonably definite and must not amount to exclusive possession of the servient land. A claimed right to store goods across the whole of a neighbour's yard fails for that reason, while a right to pass over a defined route succeeds.

Express easements

Most easements are created in writing, in the transfer or lease that splits one holding into two. The seller of part of a site grants the buyer a right of way over the retained land and reserves for itself a right to run services under the part sold. A landlord granting a lease of a unit on an estate grants the tenant rights over the common parts and reserves rights of entry.

Where the servient land is registered, section 27(2) of the Land Registration Act 2002 makes the express grant or reservation of an easement a registrable disposition, and under section 27(1) it does not operate at law until the registration requirements are met. HM Land Registry's practice guide on easements says the burden is noted on the register of the servient title and, where the dominant land is registered, the benefit is entered on its register. An express easement that was never registered exists in equity only, and may not bind a buyer of the servient land.

A well-drawn grant identifies the route on a plan, says what the right is for, whether it is on foot or with vehicles, at what times, who maintains the surface and who pays, and whether the servient owner can move the route. Easements granted in a sentence and without a plan generate most of the litigation.

Implied easements

Where nothing was written down, the law implies easements in defined situations. An easement of necessity arises where land is sold with no other access at all. An easement of common intention arises where both parties knew the land was to be used in a particular way that needs the right. And a set of rules developed by the courts implies, in favour of the buyer of part, the continuous and apparent rights the seller was exercising over the retained land before the sale.

The broadest source is section 62 of the Law of Property Act 1925. Unless a contrary intention is expressed, a conveyance of land is deemed to include all liberties, privileges, easements, rights and advantages appertaining or reputed to appertain to the land. Where the seller had let a tenant use a path across the seller's other land, a later sale of the tenant's part can turn that permission into a full easement. Sellers of part regularly exclude section 62 for this reason.

Implied easements over registered land take effect at law without registration, though they can be registered voluntarily on evidence, such as a statutory declaration or a court order, that they have arisen.

Prescriptive rights of way and easements by long use

A prescriptive right of way is a right of way acquired by long use. A right that has been used for long enough can become an easement even though it was never granted. The use must have been as of right, which HM Land Registry's practice guide on prescriptive easements summarises as without force, without secrecy and without permission. Use that the servient owner permitted, or objected to, or did not know about, does not count.

There are three routes. Prescription at common law presumes that the right has been enjoyed since 1189. Lost modern grant presumes, from twenty years' use, that a deed of grant was once made and has been lost, and the presumption cannot be rebutted by showing no such deed existed. The Prescription Act 1832 provides in section 2 that twenty years' uninterrupted enjoyment of a way or other easement cannot be defeated merely by showing it began after 1189, and that forty years' enjoyment makes the right absolute unless it was enjoyed under a written consent.

The Act has a trap. Section 4 requires the period to be the twenty or forty years next before some suit or action in which the claim is brought into question, so a gap in use before proceedings can defeat a claim under the Act while lost modern grant, which looks for any twenty-year period, survives. The same section provides that an interruption only counts once it has been submitted to or acquiesced in for a year after the claimant had notice of it.

Whichever route is used, the evidence is the same: detailed statutory declarations or statements of truth from the people who used the right, saying what was done, how often, by whom, and over what period. On an application to register, HM Land Registry serves notice on the owner of the burdened land, and an objection that is not groundless goes to the First-tier Tribunal unless the parties settle it.

Lost modern grant

Lost modern grant is a legal fiction. Where a right has been used as of right for twenty years, the law presumes that the owner of the burdened land made a grant of the easement at some point and that the deed has since been lost. The presumption stands even where everybody knows no such deed was ever made, which is why it is described as a fiction.

Its value lies in the timing. A claim under the Prescription Act 1832 must show twenty years' use next before the court action in which the right is questioned, because section 4 ties the period to the proceedings. Lost modern grant can rely on any twenty-year period. A right of way used openly from 1990 to 2012 and then abandoned when a gate was locked can fail under the Act, because the twenty years did not run up to the claim, and still succeed under lost modern grant.

For that reason a claim to a prescriptive easement pleads the three methods together: lost modern grant, the Prescription Act and common law prescription. HM Land Registry's practice guide 52 treats all three as ways of acquiring an easement by prescription, each resting on at least twenty years' use as of right.

Registering a prescriptive easement under practice guide 52

HM Land Registry practice guide 52, easements claimed by prescription, sets out how a prescriptive easement is entered on the register. The guide was last updated on 1 June 2026.

The claimant must produce evidence, in a statement of truth or statutory declaration, of continuous use as of right for at least twenty years. HM Land Registry's form ST4 is a statement of truth designed as a framework for that evidence. It asks who used the route, for what, how often, and whether permission was ever sought or refused. A plan is needed wherever a written description leaves doubt about the location or extent of the right.

Where the land with the benefit is being registered for the first time, the easement is claimed on form FR1. Otherwise the application is made to register the easement against the existing title. Where only the burden is to be noted, a notice is applied for against the burdened title.

Where both titles are registered and the claim succeeds, the benefit is entered in the property register of the claimant's title and a notice is entered in the charges register of the burdened land. The registered proprietor of the burdened land is given notice of the application and can object. Practice guide 52 also notes that use cannot be as of right while the same person is in possession of both the benefitting and the burdened land, and that long, unexplained periods of non-use will prevent an easement from arising.

How to stop a prescriptive easement arising

A prescriptive easement arises only from use without force, without secrecy and without permission. An owner who wants to stop one arising over their land in the UK has to take away one of those three conditions before the twenty years are complete.

Give permission in writing. Use by permission is not use as of right, so a letter to the neighbour, or a short licence, saying that the route may be used by permission and that the permission can be withdrawn, prevents the use counting towards prescription for as long as it is in place. Under section 2 of the Prescription Act 1832 a claim based on forty years' enjoyment is defeated only by consent given by deed or in writing, so written permission is the safer form.

Object and interrupt. Use in the face of the owner's objection is use by force. A letter of objection, a sign saying the route is private and used by permission only, or a gate that is kept locked each record that the use is contested. Under section 4 of the Act an interruption counts only once it has been submitted to or acquiesced in for one year after the user had notice of it, so the interruption has to be maintained and recorded.

Keep dated photographs of signs and gates, copies of letters, and notes of when the route was blocked. Once twenty years' use as of right has been completed, the right has been acquired and a sign can no longer stop it, and those records become the answer to a statutory declaration that the use was uninterrupted and unchallenged.

Rights of way, drainage and services

A right of way is the easement people think of first, and its scope is set by its terms or, for a prescriptive right, by the use that established it. A way acquired by twenty years of walking across a field does not become a vehicular access because the dominant owner has bought a van. A way granted "for all purposes" is wide, but a change in the character of the dominant land that greatly increases the burden can still be challenged.

Drainage and services are easements too, and for commercial premises they matter more than access. Water, electricity, gas, telecoms and foul drainage often run under neighbouring land, and the right to keep them there, to enter to repair them, and to connect new supplies has to exist. A right to use existing pipes does not carry a right to lay new ones. Where the supply is a public one, the utility's statutory powers may cover the pipe, and where it is private, the paperwork has to.

Parking, storage, fire escape routes, the right to hang signs on a neighbouring wall, and the right to use bin stores and loading bays are the other easements that turn up on business premises, and each has to be found and read before anybody relies on it.

Checking the title at HM Land Registry

For registered land, the starting point is the official copy of the title register and the title plan, each available from HM Land Registry for £7. The property register of the dominant title lists the rights that benefit it, usually by referring to the deed that granted them. The charges register of the servient title lists the rights that burden it.

The register often gives the date and parties of the deed and says the rights are "as set out" in it. That means the deed itself has to be read, and copies of documents referred to on the register can be ordered from HM Land Registry as well. Read the plan at the same time, because a right of way over "the land coloured brown" is meaningless without it.

Check the neighbouring titles as well as your own. A right that benefits your land ought to appear as a burden on the neighbour's register, and if it does not, the question is why. Check also whether the neighbour's title shows rights over your land that you did not know about.

For unregistered land the evidence is in the title deeds, which have to be read from the root of title forward, and in what can be seen on the ground.

Easements that do not appear on the register

The register is a good guide and an incomplete one. Implied and prescriptive easements arise without any entry, and the Land Registration Act 2002 deals with whether they bind a buyer of the servient land.

Paragraph 3 of Schedule 3 to the Act makes a legal easement that is not on the register an overriding interest, which binds a buyer, unless at the time of the purchase it was not within the buyer's actual knowledge and would not have been obvious on a reasonably careful inspection of the servient land. Even then, the easement still binds if the person entitled to it can show it was exercised in the year before the purchase.

So a worn track, a manhole cover, a drain outfall or a gate in a fence puts a buyer on notice, and a right used within the last twelve months binds the buyer whether they noticed it or not. This is why a physical inspection of the land, and a set of enquiries about who uses what, sit alongside the title investigation on any purchase.

When access is blocked or a right is disputed

A neighbour who obstructs a right of way, locks a gate, parks across an access or refuses entry to repair a drain is interfering with a property right, and the law provides remedies. The question is first whether the right exists and what it covers, and only then what to do about the interference.

Start by assembling the evidence: the title register and plan, the deed that granted the right, photographs of the route and the obstruction, and, for a prescriptive claim, statements from the people who have used it and for how long. A right that cannot be proved cannot be enforced.

Then write. A clear letter setting out the right, the interference and what is required, with a deadline, resolves a large share of these disputes, particularly where the neighbour did not appreciate the right existed. Where it does not, the courts can grant a declaration that the easement exists, an injunction requiring the obstruction to be removed or restraining further interference, and damages. Where the interference is with the only access to trading premises, an interim injunction can be sought quickly.

The person claiming the right should not resort to force. Removing a fence or cutting a lock invites a counterclaim and hands the other side the moral high ground in front of a judge. Under the Prescription Act, an interruption only defeats a claim once it has been acquiesced in for a year, so there is time to take advice before acting.

Disputes over whether a prescriptive easement should be registered go to the First-tier Tribunal (Property Chamber) on a reference from HM Land Registry; disputes over interference go to the county court or the High Court. Both are expensive relative to the value of most rights of way, and mediation is worth proposing early. Our guide to commercial disputes covers how a claim runs and what it costs.

Easements on a commercial purchase

A business buying or taking a lease of premises should have three questions answered before exchange. Does the property have every right it needs to be used as intended? Is each of those rights legal, registered where it has to be, and wide enough? And what rights do others have over the property that will restrict what the business can do?

The first question is where problems hide. A unit at the back of a yard needs a vehicular right of way to the highway, a right to use the loading bay, rights for every service, and a fire escape route across the neighbour's land if that is how the building was designed. A gap in any of them can make the premises unusable for the purpose the buyer has in mind, and an indemnity insurance policy is a poor substitute for the right itself.

The third question cuts the other way. A right of way for a neighbour across the site may stop the buyer fencing it, a right to light for the building next door may stop an extension, and a drainage easement may run under the exact spot where the buyer wants to build. Our guide to buying commercial property sets out where easements fit in the wider due diligence.

Where a right is missing, the answer is to negotiate an express grant from the neighbour before completion, registered against both titles, with a plan. Where a right exists but by prescription only, an application to register it, or a confirmatory deed from the servient owner, turns an argument into an entry on the register.

If a right of way or other easement over or for your premises is disputed, send us the title registers and plans for both properties, any deed that mentions the right, and photographs of the route. We will tell you whether the right exists, how far it extends, and what can be done to register it or resist it.

Frequently asked questions

What is an easement?

An easement is a right that one piece of land has over neighbouring land: to pass across it, run pipes under it, receive light over it. It attaches to the land, so it passes to each new owner or occupier of the land with the benefit and binds each new owner of the land with the burden. It has to benefit the land itself, be reasonably definite, and stop short of exclusive possession of the neighbour's land.

How long does it take to get a prescriptive right of way?

Twenty years of use as of right, meaning openly, without force and without the owner's permission. Section 2 of the Prescription Act 1832 protects twenty years' uninterrupted enjoyment and makes forty years' enjoyment absolute unless it was under a written consent, and the doctrine of lost modern grant presumes a deed from any twenty-year period. Under the Act the period has to run up to the court claim, so a recent gap in use can matter.

How do I find out if my property has a right of way?

Get the official copy of the title register and title plan from HM Land Registry for £7 each. The property register lists rights that benefit the land, usually by reference to a deed, which should also be ordered and read with the plan. Check the neighbour's title too, where the right should appear as a burden. Rights that arose by implication or long use may not be on the register at all, so inspect the land and ask the seller who uses what.

Can a neighbour block a right of way?

Not lawfully, if the right exists and the obstruction substantially interferes with it. The remedies are a declaration that the easement exists, an injunction requiring the obstruction to be removed and damages. Gather the title documents, the deed, photographs and witness evidence first, then write setting out the right and a deadline. Avoid removing the obstruction by force, and note that under the Prescription Act an interruption only counts once acquiesced in for a year.

Does an unregistered easement bind a buyer?

Often, yes. Under paragraph 3 of Schedule 3 to the Land Registration Act 2002 a legal easement that is not on the register overrides a purchase unless it was outside the buyer's actual knowledge and it would not have been obvious on a reasonably careful inspection. Even then it binds if it was exercised in the year before the purchase. An express easement over registered land that was never registered is a different case, because it takes effect only in equity.

What is lost modern grant?

Lost modern grant is a legal fiction under which twenty years' use of a right as of right leads the law to presume that a deed granting the easement was made and has since been lost. The presumption cannot be rebutted by showing that no deed was ever made. Unlike a claim under the Prescription Act 1832, which needs twenty years ending with the court action, lost modern grant can rely on any twenty-year period of use, so it survives a later gap in use.

How do you stop a prescriptive easement in the UK?

By stopping the use counting as use as of right before twenty years are complete. Give written permission that can be withdrawn, since use by permission cannot found a prescriptive claim. Or object in writing, put up signs and lock or block the route, since use against the owner's objection is use by force. Under section 4 of the Prescription Act 1832 an interruption counts once it has been acquiesced in for a year. Keep dated records of all of it.

What is section 62 of the Law of Property Act 1925?

It provides that a conveyance of land includes, unless a contrary intention is expressed, all easements, rights and advantages appertaining or reputed to appertain to the land. Its practical effect is to turn informal arrangements into full easements when part of a holding is sold or leased, such as a path the seller had let an occupier use. Sellers of part usually exclude it in the transfer so that only the rights expressly granted pass.

Sources & further reading

• Land Registration Act 2002, section 27
• Land Registration Act 2002, Schedule 3
• Prescription Act 1832, section 2
• Prescription Act 1832, section 4
• Law of Property Act 1925, section 62
• HM Land Registry practice guide 62: easements
• HM Land Registry practice guide 52: easements claimed by prescription
• GOV.UK: search for property information from HM Land Registry

This article is general information, not legal advice. The law changes and depends on your circumstances — always take advice on your specific situation before acting. Last reviewed 29 September 2026. AD Solicitors Limited is a recognised body regulated by the SRA (no. 8011228).