Easements Part 2 Flashcards
What is the fundamental concept of easements by prescription?
- Easements can be acquired through prolonged use
- Viewed as an organic method of obtaining a property right, with an emphasis on the duration of the use
- Underlying principle is often linked to the acquiescence of the servient owner
- But the claimed right must still align with the traditional understanding and demonstration of what constitutes an easement
What are the three primary methods of acquiring an easement by prescription in English law?
- Common Law Prescription
- Lost Modern Grant - a legal fiction developed by the courts
- Prescription Act 1832 - legislation that established two distinct periods of use for acquiring easements. This Act did not abolish the other two methods
What is Common Law Prescription, and what are its limitations in the modern context?
- Common law prescription is based on the use of a right since ‘time immemorial’ (1189).
- If a right has been used for at least 20 years, a presumption arises that the use has existed since 1189.
- However, this presumption can be rebutted by demonstrating that the right could not have existed in 1189, for instance, due to common ownership of the dominant and servient tenements after that date or if the property in question didn’t exist then (e.g., a house built in the 1960s).
- This method is considered problematic in the modern world because it can be easily rebutted in many situations, especially in urban areas with more recent developments.
Explain the legal fiction of Lost Modern Grant in the context of easements by prescription.
- The courts have developed the legal fiction ‘lost modern grant’
- This presumes that if a right has been enjoyed for 20 years, a grant of that right must have been made and subsequently lost
- Significant advantage of this method is that the 20 year 20-year period does not need to be immediately before the legal action (unlike the Prescription Act 1832)
- Presumption is strong and will be made even without evidence of a grant, and even if there is evidence that no grant was ever made
- However, the presumption can be rebutted if there was no capable grantor during the 20-year period, which is particularly relevant in cases of subdivision of land where there was a period of common ownership
Outline the key provisions of the Prescription Act 1832 regarding the acquisition of easements
other than light
- The Prescription Act 1832 (s 2 for easements other than light) introduced two prescription periods: 20 years and 40 years
- The enjoyment must have been “without interruption”
- The required period must be the “period next before some Suit or Action” where the right is questioned (s 4)
- If an easement has been enjoyed for 20 years, the claim cannot be defeated solely by showing that the use began after 1189, but it can be defeated by other means possible at common law, such as the lack of a capable grantor
- An easment enjoyed for 40 years, the right is deemed absolute and indefeasible
- The Act only grants rights to an easement once an action is brought to court.
- Unlike lost modern grant, the 20 or 40 years must be the last 20 or 40 years leading up to the court action. The Act was poorly drafted and did not abolish common law prescription or lost modern grant.
What are the essential requirements for establishing an easement by prescription, regardless of the method used?
Continuous User: continuous use in fee simple by the dominant owner (or someone acting on their behalf, like a freehold owner) - long gaps in use will prevent the establishment of prescription as illustrated by the case where use only three times in twelve years was insufficient (Hollins v Verney (1884))
* The use can be against successive owners of the servient land, as long as it remains continuous
Use ‘as of right’ nec vi, nec clam, nec precario): The dominant owner must exercise the right as if it had been legally granted. This means the use must be:
* Without force (nec vi): Exercised without physical force and not despite objections from the servient owner.
* Without secrecy (ne clam): Open and not hidden.
* Without permission (nec precario): Not based on a licence. However, use can begin with permission and later become “as of right,” which is a question of fact. The case of London Tara Hotel Ltd v Kensington Close Hotel Ltd illustrates this, where continued use after a change in servient ownership (without the new owner’s explicit permission) led to a prescriptive easement
Acquiescence
* It must be demonstrated that the servient owner acquiesced in the dominant owner’s use of the right
* Dalton v Angus & Co, Fry LJ stated that acquiescence is presumed if the servient owner had (a) knowledge of the acts done, (b) the power to stop the acts, and (c) abstained from exercising that power. Landowners must object to the exercise of rights over their land to prevent them from becoming irrevocable.
How does illegal use affect the acquisition of an easement by prescription?
An easement by prescription cannot be established based on land use that would be illegal even if the servient landowner consented
- Example: ischarging wastewater into watercourses without the Environment Agency’s consent cannot lead to a prescriptive easement (George Legge & Son Ltd v Wenlock Corp )
However, it is possible to gain an easement by prescription if the claim woulld only be illegal because the servient landowner did not consent.
- In such cases, the landowner’s permission is deemed to have been granted by long use,
- seen in Bakewell Management Ltd v Roland Brandwood and Ors concerning driving over common land, which is illegal under LPA 1925 s 193(4) without permission
Explain how the registration of land under the Land Registration Act 2002 affects legal easements created by prescription.
- For registered Land, a legal easement created by prescription is considered an overriding interest under the Land Registration Act 2002, Schedule 3, paragraph 3. This means it can bind a purchaser of the servient land even if it is not registered
For it to be binding, one of three conditions must be met
* The purchaser has actual knowledge of the easement
* The easement is obvious on a reasonably careful inspection of the land over which it is exercisable
* The easement has been exercised within the period of one year before the disposition (sale or other transfer)
* The Act aims to reduce the number of overriding easements to align with the ‘mirror principle’ of registration. There is a requirement for parties to declare known overriding interests for registration
How does the registration of land affect legal easements granted expressly but not registered, and equitable easements?
- Expressly granted legal easements over registered land must be completed by registration to be legal (LRA 2002 s 27(2)(d)). If not registered, the easement remains equitable.
- Equitable easements over registered land must be registered by a notice on the charges register of the servient land to bind a purchaser.
- Before the LRA 2002 came into force, unregistered equitable easements (intended to be legal) could, in some cases, be overriding interests if openly enjoyed.
- Since the LRA 2002 (October 13, 2003), new equitable easements cannot be overriding interests. However, easements that were overriding before this date continue to be so until registered (LRA 2002, Sch 12, para 9)
What is the position regarding easements over unregistered land?
A legal easement granted over unregistered land binds all purchasers because it is a legal interest.
An equitable easement over unregistered land **must be registered as a Class D(iii) land charge under the Land Charges Act 1972 **to be binding on a purchaser.
Equitable easements in this context often arise when the right is connected to an equitable lease.
What are the Law Commission’s views on the current state of easement law?
The Law Commission considers the area of easement law, particularly easements by prescription, to be technical and tricky.
Their report, “Making Land Work: Easements, Covenants and Profits a Prendre” (Law Com No 327), proposes changes to clarify this area of law. These proposals also consider section 62 of the Law of Property Act 1925.
Despite the recognized need for reform, there has been limited legislation in this area, partly due to a lack of political priority. The Law Commission suggests that reform could potentially speed up the house buying process by simplifying land registration.
How does the “right to fencing” fit within the traditional understanding of easements?
The “right to fencing” is considered slightly unusual because it** typically requires the servient owner to spend money, blurring the lines between easements and covenants.**
Common law generally does not permit easements that impose positive obligations (like expenditure) on the servient owner.
Cases such as Crow v Wood (1971) and Churston Golf Club v Haddock (2019) illustrate the long-running problem and the fact that the existence and parameters of an easement of fencing are not clearly codified. The legal status ultimately depends on future court decisions.
