Have recently bought a house adjacent to farm land. The farm land contains several public ROW’s (bridleways) and is also within an AONB, one of the bridleways is roughly 10 feet from my fence boundary. I have an old gate onto this farm land leading to the Public ROW. The gate has been in existence and use for easily in excess of 30 years as the previous owner(s) have told me. However the farm owner has informed me in conversation that we cannot use the gate (and the same with several of my neighbours who have gates) and he said if they “see people using gates onto their land there will be trouble”.
My question is, if there is a Public ROW through the farm land adjacent to my boundary fence (albeit 10feet away), and the gate has been used in excess of 20 years, without being hindered or physically stopped/blocked by landowner; does it not become a prescriptive ROW? At present we have only previous owners word for it, clearly the gate is very old, it actually cuts through the hedge on other side of my fence and has clearly been established for many years. Thanks
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Look for old maps and aerial photos of the area, as well as deeds etc.
Gates in agricultural areas frequently mean that historically livestock from neighbouring farms were driven to market via old tracks that have now become PROWs....if this was the case for many years then rights will have been gained by prescription.
Also look into the historical ownership of neighbouring land since they may have been part of a large estate and it may have been the intention that the divided parts were to have access to the PROW.
Seasoned farmers never remove a gate since the presence of a gate means that at some point it was opened and used.
The way in which a prescriptive right can be established over neighbouring land relies, in principle, upon the acquiescence of the land owner to the act. In this case I presume it would be walking across the ten feet of land to access the public right of way.
It order to gain a prescriptive easement it will be down to you (onus of proof), to establish that the use has been for a continuous period in excess of twenty years (not necessarily ending anytime recently). I mention "continuous" because any significant gaps in the twenty year period may defeat your claim. The use itself does not have to be "continuous", but it does need to have been frequent enough to demonstrate to the land owner that a "right" is being used, so once a year would not suffice, but it need not be daily.
The use must have been "Nec Clam"---without secrecy. So no camouflage jackets, no waiting until the land owner is away at the auction mart, and not use at three o'clock in the morning.
The use must have been "Nec Vi"... without force. So no tearing down of fences or walls, or even of climbing over them.
The use must have been "Nec Precario"...without permission. This includes both written and verbal permission given by the land owner.
There are three ways that a prescriptive easement can come into being, all of these use the twenty year rule. These are by the Prescription Act 1832, by common law, and by (the fiction of) Lost modern Grant. There is plenty for you to read on the web about these, just be sure that the site is dealing with the rules that apply in England and Wales. The genuine Land Registry web site also has information on this, as well as giving info about how to complete a statement of truth in the correct format. Since you are relatively new to your property, using any of the prescriptive routes will almost certainly involve you contacting the previous occupiers of your land. You should also get them to state if they ever took a wheel barrow or animals across the land.
You say that you and some of your neighbours have gates leading onto the farmers land. I was wondering if some or all of these properties were once under common ownership (eg once part of the farm and then sold off), are they ex-farmworkers cottages for example? If this is the case then the right to cross the farm land to access the public right of way may well have passed to the new owners ( and subsequently to you) under either the "rule" in Wheedon V Burrows, or as (unwritten) easements under Section 62 of the Law of Property Act 1925.
I think it would be wise for you to download the deeds of the farm,and the title plan from the (.Gov) genuine Land Registry website, it costs £3 per document. Get the same for your own property if you don't have it already. To delve into the history you should look for entries which state "copy filed", these documents are available by post from LR at £7 each. You are looking for evidence that the houses and the farm were in common ownership so look for dates which correspond on both sets of deeds.( All this assumes that the farm property is registered!).
The farmer may be under the impression that if he can prevent use of his land for long enough, any easement will "expire", nothing could be further from the truth.
What did the estate agent details say about the gate, and the previous owners property information questionnaire?
ps. take lots of photos of all of the gates.
That would provide an opportunity for the farm owner to object to the application to have a prescriptive right of way recorded.
If that were to happen then Land Registry will not be able to complete the application until the matter is referred to the First-tier Tribunal (Property Chamber) Land Registration Division for a judgement on the claim.
That is dealt with by a judge who will hear evidence from both parties before deciding whether there is sufficient evidence to prove on the balance of probability that a prescriptive easement now exists in favour of the property with the gate on the boundary.
If the farm land is unregistered all that can happen is that an entry will be made on the Property Register of the house title that such a claim has been made, but that will not be proof of a prescriptive easement, because the unregistered owner of the farm has not had an opportunity to take legal action to disprove such a claim.
The old-maps web site which shows earlier versions of the Ordnance Survey maps is a useful place to research whether there were paths shown leading from the gates to the public bridleways, which can also be used as evidence if statements of truth can be obtained from the previous owner.
If for example there were clearly defined paths on OS maps dated 1950 and 1970 then that is evidence of use for a 20 year period, even if use has not been continuous in the last few years because the farm owner has begun to stop use by threatening the house-owners. The 20 year period between 1950 and 1970 may be sufficient evidence to confirm the fact that there was an easement that met the legal requirement to confirm a prescriptive easement came into existence, so that such an easement cannot be extinguished by the current actions of the farm owner.
The point is that there has to be clear enough evidence to support any claim that a prescriptive easement did come into existence.
The other claim that when the houses and the farm were in common ownership there were paths from each house leading to the public bridleway, would mean that on the sale of a house by the farm owner the right of way could have passed as a legal easement unless each conveyance excluded that from happening.
if you intend to take on the farm owner about use of the land between the boundary gate and the public bridleway you need to know that clear evidence will be needed in the face of a belligerent farm owner determined not to allow such use of his land.
There have been other threads from people asking how to stop inconvenient rights of way.
"Gates in agricultural areas frequently mean that historically livestock from neighbouring farms were driven to market via old tracks that have now become PROWs....if this was the case for many years then rights will have been gained by prescription."