A Matter of Land | Can I still use this walkway?

Good day readers.  This week we respond to another reader’s question.

Good day Mr Francis,

I am enquiring whether there is a statute of limitation on getting permission to use a walkway.  Both parties of the properties adjoining the walkway are now deceased. 

I await your answer. 

Mlee

God day Mlee,

 Thanks for taking the time to pen your question as well as for reading A Matter of Land.  I will try to respond as best as possible to what is a very vague question.

What I assume is that there is a walkway that you are interested in using, or have been using and that you would like to continue to use despite the death of the adjoining owners.

The first issue that would be important is if this walkway is used as an access to your property? If yes, then how long have you been using this walkway?

Prescriptive easement

This walkway could be a right of way that has been established over time that would not need any permission from either owner for you to have access to use of it. It would become what is called prescriptive easement. 

A prescriptive easement is an easement upon another person's land acquired by continued use without permission of the owner for a legally defined period.

The legally defined period could be determined to be as short as seven years as determined by the Limitation of Actions Act, or 12 years as determined by adverse possession or the time prescribed under the Prescription Act (Section 9).

So if the walkway has been used by you, or others, to access their properties without permission in excess of seven years then no permission may be needed as the law may already deem it a prescriptive easement which would provide you with a right of way.

I hope this has allowed you to have a better understanding.

Keep sending your questions and comments and let’s continue to explore A Matter of Land. Until next time traverse well.

Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or Precision Surveying Services