Easements by Precription Flashcards
Prescription
Another form of implied easement, but it takes place over a long period of time
Easements by prescription, like adverse possession, is an approach used by the court to deal with the practical reality that is the way easements are used on the ground
The law accommodates and devises its principles to serve what is already happening
Practical reality
- The law generally is averse to disruption of a long-established custom, particularly where it concerns two private lands
- The law recognises long-established use of neighbouring land and accords legal rights to those who would otherwise be in trespass
- A defence to a claim of trespass
- Lord Hoffman in Ex Parte Sunningwell PC: “any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment”
- The long use shows, generally, that it is a good useful and efficient thing to have
- The law is likely to find a way of upholding that, which is through a strange use of a legal fiction
Similarity to adverse possession
- Where somebody has used another’s land over a long period of time, and the owner has not stopped it, the law is going to recognise a legal right to do that thing / to occupy that land
- But, the use is not presumed to be against the title of the owner, there is nothing adverse about prescription. Rather, it is presumed to lie in grant
- The servient owner is deemed to have granted the legal right to the dominant owner, even though he has not. It is deemed that the deed of grant, giving the legal easement, has been made and therefore s52 LPA is fulfilled
- Because the easements lie in grant, easements by prescription are always legal
Legal fiction
Undesirable that long use should cease because of lack of documentary proof of its grant
But, easements must be established by grant, hence the legal fiction of the presumption of a grant
Require,emts
- Without force (nec vi)
- Because fore would undermine the fiction of a grant of a right
- Without secrecy (nec clam)
- So that the servient owner has the opportunity to assert their opposition
- Without permission (nec precario)
- As of right
- If there is proof that permission has been granted, that will be fatal to a claim
Dalton v Angus
FACTS
A warehouse was depending on the neighbouring building for structural support, and the owner of the neighbouring building tears it down even though he knew or ought reasonably to have known that the warehouse was depending on his property for support and if he did anything he would destroy something
Dalton v Angus
HELD
- There was an easement to support a building that he had acquiesced in because during all this time he never told the neighbour he may want to pull his building down
- The presumption is based on the proof of user and acquiescence of the servient owner (they have not tried to stop it) to use
- Only works if the servient owner stands by and acquiesces
- Lord Fry: all cases of acquiescence show that the servient owner has knowledge of the acts, the power to stop the act / to sue and has not done so
Acquiescence and Permission
Mills v Silver
Acquiescence is not the same as permission
- Servient owner’s failure to take action against use does not imply a licence
- Tolerance (acquiescence) does not imply permission
- Tolerance supports the presumption of a grant
- The fiction rests on the idea that this was done despite the servient owners not giving permission
- Failure to take action does not imply a licence
- You must give evidence that you had given permission
- Dillon LJ: “a priori, user in which the servient owner has acquiesced ort which he has tolerated [is consistent] with the concept of user as of right”
- Sufficient and open use is enough
- Mere tolerance will not defeat the acquisition of a right
Common law prescription
- User from time immemorial (since before 1189 – the first year of the reign of Richard I and the start of ‘legal memory’)
- Grant is presumed after 20 years’ uninterrupted user
- Easily rebutted by evidence that the user was not possible (e.g. where the claim is in favour of a building constructed after 1189)
- Probably can be used with farms and fields
Doctrine of ‘lost modern grant’
- 20 years’ uninterrupted user, generates the presumption that a right was granted by deed (‘modern’ because post-1189) but the deed is not lost and so cannot be produced in evidence
- Legal fiction: evidence that in fact no right was ever granted does NOT rebut the presumption
- Can only be rebutted by evidence that the owner did not have the power at the relevant time to grant this right
- The fiction is assumed for legal purposes – here, to prevent the interruption of long use
-
Tehidy Minerals v Norman: “where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made” per Buckley LJ
- The only way a grant can be disproven is if the servient owner at the time was a minor and thus could not have been the legal owner or if they were mentally incompetent
s2 Prescription Act
Supplements the common law and doctrine of lost modern grant
20 year’s uninterrupted user “next before action” preserves the common-law rebuttable presumption, but where user uninterrupted for 40 years, right is indefeasible unless shown to have been with consent
20 years’ user can be used by dominant owner as defence to trespass
40 years’ user can be used to assert a claim by the dominant owner
Narrow application of s2 Prescription Act 1832
- Next before action:
- Where a claim is for use over centuries except for a hiatus for around 12 years, the PA would not apply (could use lost modern grant)
- It also means that right not to indefeasible unless established through an action
Bakewell Management v Brandwood
Trespass + s2 Prescription Act
- Because it was an offence to go across certain land, could you profit from your own wrong
-
HELD: although it was an offence to drive across the green without permission, it could be made lawful
- The use could be lawful as long as the purported servient owner could have granted (i.e. rendered the activity lawful)
- Lord Scott: “a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of being tortious. That is how prescription operates. Public policy does not prevent conduct illegal in the sense from leading to the acquisition of property rights”
Limits on powers to grant rights being strictly controlled by s2 Prescription Act
EVANS V WIMBLEDON AND PUTNEY COMMONS
- E challenged a decision of the WPCC to grant easements to local authority over the green
- Wimbledon and Putney Commons Act, s32 prohibited the WPCC from disposing of any part of the commons
- Granting a right of way did not amount to disposing (alienating) the commons and it did not compromise the duty to keep commons in their open natural state
Long user and freeholds
- Long user only works with freeholds
- A tenant of the dominant land can use an easement generated by prescription
- But the easement so generated pertains to the freehold, not to the leasehold, so that tenant’s use of the right is attributed to the landlord
- No prescription when an easement is claimed against servient land that has been subject to a tenancy, because it must be shown that the use was granted (lay against) the freehold owner. If the freehold owner has given the exclusive right to control the land to the tenant for the duration of the tenancy, then he will not have had the power to acquiesce in the easement at the relevant time
- However, where use begins before a tenancy of the dominant land commences, a claim in prescription may be founded [Pugh v Savage]
- It is feasible to argue that the servient owner could have granted the rights at the time
- But, if the use starts while the servient land is subject to a tenancy on terms that completely exclude the fee simple owner, then no right can be established
