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Landlords need to safeguard against unintended rights of way

25th January, 2011

In 2010 the High Court considered the circumstances when a prescriptive right of way can be inadvertently obtained.

The case confirms that Landowners who grant a licence to use land should check that the land is actually being used in accordance with the terms of the original licence. This is in addition to periodically checking that their land is not being used by others, such as adjoining owners, where no licence has been granted at all.

Landowners should act promptly to take positive action to protect their rights where their land is being used without their permission or outside the terms of a licence. It is also important to keep licence arrangements up to date where, for instance, a licence to use the land has expired or it has ceased to apply as it was personal to a previous user or licensee.

If no checks are made or steps taken, then landowners run the potential risk that others might acquire prescriptive rights which could be detrimental to the future development or use of their own land. “The case highlights the need for landowners to be vigilant”, comments Simon Ellis. “A Landowner can reduce their risk of unintended third party rights over their land by simply ensuring that a licence is put in place, that the terms of that licence are adhered to and by being aware of what is actually taking place on their land.”

Please contact Simon Ellis for any further information related to this article or any other commercial property issue at [email protected]

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