PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
A landowner who allows another person or persons to make use of their land may lose the right to prevent the use if it persists over a long period. Where such use continues for more than 20 years, an ‘easement’ (the right of use over someone else’s property) is created.
In a recent case, a woman claimed an easement had arisen over land near her garage, because she had used the land to turn her car around so that she could reverse into the garage, thereby allowing an easier exit. The owner argued that no easement existed because, during a period of time within the 20-year period, the access to the land had been obstructed, requiring the garage owner to access the turning area by driving over land owned by a third party.
The court found that an easement did exist. It was the use of the land in question that was relevant, not the route by which the land was accessed. The fact that the woman had been obliged to cross a third party’s property when her normal access route was obstructed did not prevent a right of way from arising.
However, the court did consider that the landowner could build on the land provided that sufficient space was left for cars to be turned around: the right did not extend to the whole of the landowner’s property.
If you have land which you allow other people to use, it is important to make sure that you preserve your rights over it unless you are happy that these may be lost. We can advise you on the appropriate steps to take.