Prescriptive Easements

Question 1

Define a prescriptive easement

Answer 1

An easement by prescription allows easements to eb recognised as a result of long use with the consent of the owner of the servient tenement.

Necessity

Long user - 20 years

Question 2

3 requirements of a prescriptive easement

Answer 2

Nec Vi - Without force

Nec Clam - Without secrecy

Nec Precario - Without permission

Question 3

3 methods to apply for an easement by prescription

Answer 3

Common Law - Hard to prove since 1189

Doctrine of lost modern grant - Fiction

Prescription Act

Question 4

Rules which apply to all types of prescription

Answer 4

Use must be ‘as of right’ because based on assumption that the right has been past to landowner at some time in the past

Must be Nec, Vi, Nec Clam, Nec Precario

Question 5

Requirements of a prescriptive easement by Common Law

…..and downfalls

Answer 5

Must be in existence since 1189

Able to prove 20 years use next before action

Rarely successful and easily rebutted

Question 6

Requirements of a prescriptive easement by doctrine of lost modern grant

….. and downfalls

Answer 6

20 years use next before action

Court accepts original grant must have been lost

Based on pure fiction

Question 7

Requirements of a prescriptive easement under the Prescription Act 1832

Answer 7

Two periods of acquisitions - 20 or 40 years

20 years - cannot be defeated by evidence use commence after 1189

40 years - deemed absolute and indefeasible unless permission was granted in writing or by deed

Must satisfy characteristics of an easement

Any evidence of interruption will defeat a claim if hostile and for at least a year

Question 8

Case where an easement by prescription was granted under Prescription Act 1832

Answer 8

Bakewell v Brandwood [2004]

Right of way resisted as user was unlawful

Hanning overruled