Preventing Prescriptive Rights

Mari Sibley, Associate Director at Cooke & Arkwright, shares her insights into how landowners can proactively prevent prescriptive rights from being established on their property.

What are prescriptive rights?

Prescriptive rights are legal rights someone can gain over land they do not own by using it continuously for 20 years - without permission, secrecy or force.

Why it matters

Prescriptive rights claims often arise at inconvenient times, such as during a sale or proposed development, and can delay transactions or restrict landowners’ control.

On large estates, limited staff and increased visitor numbers through diversification can make it difficult to monitor land use. Common examples include:

If such use continues unchallenged for 20 years, the Land Registry may register an easement, creating a legal right that limits the owner’s use of the land.

Issuing licences to regulate use or taking steps to prevent use are ideal solutions but often unrealistic when resources are limited. Fortunately, recent case law highlights simple, cost-effective ways that will assist in preventing such claims.

Use clear signage

The case of Cotham School v Bristol City Council [2025] EWHC 1382 (Ch) considered the meaning of use ‘without force’ and effective use of signage.

The Judge in the case confirmed that:

"the use of the phrase “by force” in this expression is misleading. A better word might be “contentious”, in the sense that the owner objects to the user, even though not resorting to force to expel trespassers, or, indeed, resorting to it to prevent them entering. Depending on the circumstances, signs placed by the owner on the land (for example) may well indicate that the use is contentious."

If the use is judged to be contentious, it cannot be ‘as of right’ and the creation of rights may be avoided. The erection of suitably worded signs at strategic locations on the estate can be extremely useful. They should be photographed in situ and may need to be replaced at times, but the effort may prove to be well-rewarded.

Keeping records of correspondence

A second, not-so-recent case of Patel v W.H. Smith (Eziot) Ltd [1987] 1 W.L.R. 853, can prove useful  in situations where use has not been formalised or objected to by a land manager but, at some point in the preceding 20 years, there has been an unintentional admission by the claimant of a right that the use has not been ‘as of right’. This may take the form of an email about entering negotiations to formalise or purchase a right or even a conversation at the side of the road confirming that the use is tolerated by the estate at that time. The latter was described in the hearing as a position of ‘tolerated licence’.

The judgement proceeded to confirm that where there are two potential basis for a right, one being use ‘as of right’ or the other tolerated licence, the latter will always be preferred.

Recent case example

This precedent recently supported an objection on behalf of a client to a Land Registry proposal to register a  prescriptive right to a neighbour. A letter from the claimant, sent early in the 20-year period, confirmed the use was tolerated, not a legal right. The Registrar found the objection had merit and referred the matter to the Property Chamber

Such referrals often prompt claimants to reconsider due to the time and cost involved. The Registrar allows a 6-month negotiation period, which may result in withdrawal or agreement on a time-bound licence or alternative easement.

To support objections, it’s vital to retain correspondence and confirm conversations with emails or notes.

Conclusion

The most important rule of preventing prescription is to write down the basis on which your land can or cannot be used.

Write it on a sign, write it in an email, write it in a document!

Record your intentions and prevent claims made ‘as of right’. Your future estate development plans may be greatly aided by doing so.

Cooke & Arkwright manage over 20,000 acres of land in Wales. If you’d like to discuss your estate strategy for preventing prescriptive rights, please get in touch.