The purpose of this essay is to critically analyse how an easement might have been created via a prescription. An easement is the legal right to access or use another person's property, such as a neighbour’s land, for a particular purpose. Although an easement is technically a real property interest, as stated in Section 1(2) of the Law of Property Act 1925, The original owner retains all ownership rights to the underlying land. A dominant and a servient tenement must exist; the dominant land must be taken into account by the easement; different parties must own or use the easement; and the subject matter of a grant must be capable of being formed by an easement. These characteristics of an easement were established in the 1955 case law of Re Ellenborough Park and are fundamental to the way easements are portrayed today.

Easements may be created by direct or implied grants, by statute, by long-user prescription, or by any other equitable or legal means (www.lexisnexis.co.uk, n.d.). Prescription is used to create easements when no formal deed or implicit grant is available. "A title gained through use or enjoyment had during the period and in the manner established by law" is the definition of prescription according to Woolfe (n. d.). A prescriptive easement is a legal right that one has over the freehold property of another and that one has accrued over time, instead of asserting ownership of the land. Prescription relates to the right to use another person's property in a specific way. The right has been in use for a long time, and it is also thought that a deed originally awarded it (Buck, 2019).

According to HM Land Registry (2016), there are three ways in which an easement can be made by prescription. An easement made by prescription can be made by common law by a lost modern grant or under the Prescription Act 1832; however, the method applied to it has to be for at least 20 years and certain points applied. If permission is granted verbally or in writing by the landowner over whose land the right exists, a claim for a prescriptive easement may be defeated, as this may mean that a licence for the right has arisen rather than an easement, because the use of the right must be exercised without secrecy, force, or permission (Sugden, n.d.). Hefferen (2016) says that a prescriptive easement might be an unexpected development because it is by definition created without the landowner's consent and because it can significantly affect the property's value and marketability. According to Francis (2018), to acquire an easement through prescription, there needs to be 20 years of continuous use "as of right." Also, a prescriptive easement cannot be acquired to do anything unlawful; an example would be that a person cannot have a prescriptive easement that would pollute a river; this would look at the relevant case of Bakewell (2004) since the claimant or its predecessor in title could have provided a right of way, making the use legal.

Rebuttable legal presumptions are beneficial in court proceedings, especially when one side is required to prove that the other is wrong. A person asserting a prescriptive right must demonstrate both lengthy use (at least 20 years) and "as of right" (Latin: NEC vi, NEC clam, NEC precario). This indicates that the user did not do it voluntarily, privately, or with consent. Parties disputing the easement frequently use the House of Lords' decision in the case of Gardener v. Hodgson’s Kingston Brewing Co. (1903) in support of the idea that the burden of showing that the use was "as of right" is on the person disputing the easement (Mattsson and Chambers, 2017).

Common law easements would require the claimant to provide evidence of use "from time immemorial." The year 1189 was chosen as the reference point by the Statute of Westminster in 1275. When the servient or dominant tenement is explicitly granted or disposed of, an inferred grant of an easement results. It is only possible to infer an easement where the dominant and servient tenements have shared ownership. Implied easements are possible upon lease issuance, but they are only valid for the duration of the lease itself. The claimed rights must be able to serve as the basis for an easement (www.lexisnexis.co.uk, n.d.). According to Noble (2013), common law prescription is based on a presumptive gift that was given prior to the time "whereof the memory of man runneth not to the contrary," which was very early fixed as the year 1189, the first year of Richard I's reign, and enjoyed from "time immemorial." The date of the building for which the right is claimed is typically available to the opposing parties, and few buildings are old enough to have gained such a right, making it challenging to establish a right to light on this basis. The user must be acting "as of right," not with permission, for example. To guarantee that the asserted right has been used whenever desired, the user must have been continuous. There will be moments where disagreements centre on whether the rights being asserted, contested, and maintained are merely one-off incidents. As previously said, at common law, a claim to an assumed easement or profit based on prescription might be dismissed by presenting evidence of a break in enjoyment if the claim was based on a few isolated acts.

Another way in which an easement by prescription can be made is by lost modern grant, and so the tenets of the "lost modern grant" philosophy are that the law governing the acquisition of easements and profits is predicated on the idea that a right that has been exercised for more than 20 years must unquestionably have legal roots. The court will presume on proof of the fact of long enjoyment and that there once was an actual grant of the right. The Hughes v. Benefice of Frampton-upon-Severn case from 2021 sheds light on potential problems housebuilders and developers may encounter with regard to unregistered easements given by prescription as a result of a lost modern grant. The case highlights the necessity for landowners and developers to perform extensive investigations, including historical investigations, when purchasing a site or development. This case shows and emphasises the significance of continuing to monitor the land before beginning development in order to avoid the prescriptive formation of any additional, undesired easements (Ervine, 2022). Another case law relating to a lost modern grant is Moody v. Steggles (1879), which gives the presumption of a lost modern grant but is not a rebuttable presumption. It was determined that the provision of the right to post a signboard promoting the bar that served as the dominant tenement to the next property constituted an easement. The court said, "the habit and, in my view, the duty of the court so far as it lawfully can clothe, the fact with right." Once 20 years of usage have been proven, it is impossible to disprove the presumption by demonstrating that an actual grant existed before the use; as a result, it is more of a legal fiction than a presumption (Mattsson and Chambers, 2017).

In order to proceed with the assumption that a grant of rights had previously been granted but has since been lost, a prescription made by a lost modern grant requires proof of 20 years, but it does not need to immediately exist before the actual application. The case law here of Penwarden v. Ching, 1839, shows that under the doctrine, the owner of the dominant tenement does not need to provide evidence that a formal grant was ever made. As long as the other requirements have been met, it would be assumed that it was made and lost, as per the ruling in Dalton v. Angus (1877). Positive evidence that no donation was made cannot disprove this strong presumption. (McFarlane, Hopkins, and Neild, 2018). In the case law of Orme vs. Lyons (2012), this case demonstrates that it is not necessary to use an accessway daily or even nearly as frequently in order to establish a claim in prescription. The doctrine of the lost modern grant makes a provision for the public that wants to protect a "long running right" (Dawe, 2013). This can be particularly challenging for servient landowners to defend against. However, there are drawbacks to this approach. The application for prescription will be rejected if it can be shown that the person who initially granted the right lacked the mental or legal competence to do so (Bogahalanda and Marshall, 2022). The fact that the 20-year window of impermissible use does not have to have passed by the date of the claim is one of the main benefits of a claim under a lost modern grant. The case law here of European urban St. Pancreas 2 Ltd. v. Glynn demonstrates persuasively that a right to park cars on property can qualify as an easement under the law, even when that usage is substantial, and that the prescriptive doctrine of the lost modern grant can be used to obtain such easements (Ireland, 2013). The defendant was found to have earned a right to park on the property under the doctrine of "lost modern grant" by using the property without permission for 20 years. Judge Dight was directed to the following analysis of Angus & Co. v. Dalton [1877], which illustrated how the theory might be applied. Cranmer (2021) said because it was impossible to demonstrate that the track had been in use since 1189 and because it had not been used since 2016, the claimant was left with only one option: a lost modern grant. Based on this fiction, the court determines that the facts of the case require an express grant of an easement in the past that has since been lost.

The Prescription Act of 1832 has an important requirement that the usage period be the 20 years leading up to the issue of court action. Easements made by the Prescription Act of 1832, A prescriptive right could only exist if the grantor were unable to make the grant legally (Moloney, n.d.). The Prescription Act of 1832, Section 2, states the time limitations for right-of-way or other easement claims must be between 20 and 40 years.

Loveluck-Edwards v. Ideal Developments and Others [2012], a dispute from south Wales regarding a right of way Due to the absence of registered titles, the claim was additionally supported by the Law of Property Act 1925, s. 62, the Wheeldon v. Burrows rule, common purpose, prescription by a lost contemporary grant, and the Prescription Act 1832. The judge did not need to rely on the decision that any oral authorization given throughout the 40-year term would nullify prescription under the Act. The 1832 Act required that the prescription period be "next before action," and use had been halted for longer than the permitted 12 months. As a result, the claimants' lawsuit was rejected on all counts. (Roberts,2012).  There were amendments made to the Prescription Act 1832 s.2 in 2011, and the changes said that no claim to any route, easement, watercourse, or usage of any water may be made legitimately under common law, by custom, prescription, or grant. to be taken advantage of or obtained from any land owned by our said lord the King, the duchy of Lancaster, the duchy of Cornwall, or any ecclesiastical or lay person, or any corporate entity. When the way or another matter as specified above shall have been actually enjoyed by any person claiming right thereto uninterrupted for the whole twenty years, such claim shall be defeated or destroyed by establishing just that the way or other matter was first enjoyed at any time prior to such twenty years. The right to use the way or other matter shall be deemed absolute and indefeasible where it has been so enjoyed as aforesaid for the full forty years, but such claim may nevertheless be defeated in any other manner by which the Unless it becomes apparent that the right to use the way or other matter was obtained through some consent or agreement that was expressly given or made for that purpose by deed or writing, (Legislation.gov.uk, 2011b)

The GOV.UK (2021) states that if the transferee had no real knowledge of the easement, it was not evident upon a reasonably diligent inspection of the land, and it had not been used within a year of the transfer, the easement may cease to be in force with respect to the registered disposition. It then goes on to say that legal interests will be easements arising under common law prescription or the doctrine of lost modern. Legal interests bind the buyer of unregistered, burdened land. Most legal easements constitute overriding interests after the first registration of the burdened land, as established in section 29 and Schedule 3 of the Land Registration Act 2002, and can therefore bind subsequent registered owners of the burdened land.

According to Smithers, (Nd),) the burden is registered against the serivant, and the benefit of the right is registered as a legal interest that is an appurtenant to the claimant's titl  of dominant  There are several advantages to registration, one of which is that if a notice of the burden is not registered in the descendant title, a prescriptive easement that has been gained but is not immediately obvious upon thorough study of the land or that is not extensively used may be lost. Although the facts in any application may be somewhat similar to those in another recorded case, the land registry will examine each registration, and the finding will not be the sam.  The discovery of a prescriptive easement does not, however, mean that a similar application will be granted or that any objections to its grant will be without merit. He continues by stating that the queen's speech from May 18, 2016, discussed bringing forward suggestions in response to the Law Commission report's recommendations for making land easements, contracts, and profits a prendre. If passed, it would streamline the current system by establishing a single statutory framework for prescriptive easements. The law commission states that they believe that the changes that they suggest will make the law relating to easements more straightforward and more flexiblewhilet also leaving the fundamental nature intact (law commission, 2011).

To conclude this essay, it would be fair to say that according to the Law Commission (2011), the framework around prescriptive easements requires change to enable the easements to be more straight-forward and flexible but also to leave the actual nature of them intact. The way in which the world is evolving, it would be essential to enable the law to keep up with the fast pace environment and make the law simpler for solicitors and clients to enable a better understanding around easements and the way they are currently created.

 

By Ceri-anne Johnson

 

 

 Reference list

Bailey, A. Leitman (2019). Setting the Law Straight on Terminating Easements | Article | Chambers and Partners. [online] chambers.com. Available at: https://chambers.com/articles/setting-the-law-straight-on-terminating-easements.  [Accessed Oct. 31AD].

Buck, C. (2019). Prescriptive Easements: What Are They? | Adams Harrison. [online] Adams Harris solicitors. Available at: https://www.adams-harrison.co.uk/prescriptive-easements-what-are-they/.  [Accessed 8 Nov. 2022].

 Bogahalanda, M. and marshal (2022). Prescriptive Easements and the Doctrine of Lost Modern Grant. [online] DWF. Available at: https://dwfgroup.com/en/news-and-insights/insights/2022/3/prescriptive-easements-and-the-doctrine-of-lost-modern-grant.

Cranmer, F. (2021). Churchyard access and prescriptive right of way: Hughes | Law & Religion UK. [online] law & religion UK. Available at: https://lawandreligionuk.com/2021/08/10/churchyard-access-and-prescriptive-right-of-way-hughes. / [Accessed 3 Nov. 2022].

 Dawe, G.W.-S. (2013). Easements - how frequent does use need to be to find a claim to an easement arising through long use? [online] Lexology. Available at: https://www.lexology.com/library/detail.aspx?g=44bdcd62-fcc6-479b-b382-012988cad3c0. [Accessed 27 Oct. 2022].

Francis (2018). Easements by prescription | Reading solicitors, corporate, property and family advice | Field Seymour Parkes. [online] Reading solicitors, corporate, property and family advice | Field Seymour Parkes. Available at: https://www.fsp-law.com/easements-by-prescription/. [Accessed 20 Oct. 2022].

Ervine, B. (2022). Prescriptive easements: Risks & mitigation for housebuilders & developers. [online] Walker Morris. Available at: https://www.walkermorris.co.uk/in-brief/prescriptive-easements-risks-mitigation-for-housebuilders-developers/.  [Accessed 1 Nov. 2022].

GOV.UK. (2011). Making land work: easements, covenants and profits á prendre. [online] Available at: https://www.gov.uk/government/publications/making-land-work-easements-covenants-and-profits-a-prendre. Accessed 18^th October 2022

Hefferren, N. (2016). Prescriptive Easements: A Comprehensive Guide. [online] PropertyMetrics. Available at: https://propertymetrics.com/blog/prescriptive-easements-a-comprehensive-guide. / [Accessed 1 Nov. 2022].

HM Land Registry (2016). Practice guide 52: easements claimed by prescription. [online] GOV.UK. Available at: https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription. Accessed – 14^th October 2022

Ireland (2013). Just what the doctrine ordered. [online] Available at: https://www.forsters.co.uk/sites/default/files/NI_PLJ_060513.pdf. [Accessed 19 Oct. 2022].

Law Commission’s Report  2011 Making Land Work: Easements, Covenants and Profits a Prendre {Law Com No.; 327 Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/229064/1067.pdf (Accessed 3^rd November 2022)

Legislation.gov.uk. (2011). Prescription Act 1832. [online] Available at: https://www.legislation.gov.uk/ukpga/Will4/2-3/71. [Accessed 22 Oct. 2022].

Legislation.gov.uk. (2011b). Prescription Act 1832. [online] Available at: https://www.legislation.gov.uk/ukpga/Will4/2-3/71/section/2. [Accessed 1 Nov. 2022].

Mattson, L. and chambers, H. (2017). ‘Who has to prove what? Prescriptive rights and evidential presumptions’ an article looking at prescriptive easements: evidence and rebuttal presumptions. [online] Property Litigation Association. Available at: https://www.pla.org.uk/2017/08/prove-prescriptive-rights-evidential-presumptions-article-looking-prescriptive-easements-evidence-rebuttal-presumptions/.  [Accessed 18 Oct. 2022].

McFarlane, B., Hopkins, N. and Neild, S. (2018). Land law: text, cases, and materials. Oxford; New York, Ny: Oxford University Press.

Moloney, S. (n.d.). Bakewell Management Ltd v Brandwood. [online] www.isurv.com. Available at: https://www.isurv.com/directory_record/2631/bakewell_management_ltd_v_brandwood.  [Accessed 2 Nov. 2022].

noble (2013). Easements - Rights of Way - Andrew Noble - Barrister - Surveyor - Property - Land - Development. [online] www.landandboundarydisputes.co.uk. Available at: http://www.landandboundarydisputes.co.uk/easements.php. [Accessed 22 Oct. 2022].

Roberts, N. (2012). Freehold conveyancing. Bulletin 131. Bulletin 131     September 2012 (uwtsd.ac.uk). Date of access: 1^st November 2022

Stephen Woolf of Gatehouse Chambers. (n,d). Can an easement be established by prescription where the twenty-year period is reached through two different owners?. [Online]. Lexis Nexis. Last Updated: 13th October 2022. Available at: https://www.lexisnexis.co.uk/legal/guidance/can-an-easement-be-established-by-prescription-where-the.  [Accessed 8 November 2022].

Smithers, T. CILEX Journal Land Registry update: a guide to prescriptive rights of way. Available at https://cilexjournal.org.uk/journal/cilex-journal-september-2016/updates/land-registry-update (Accessed: October 24th^, 2022)

Sugden, E. (n.d.). Prescriptive Easements. [online] Crombie Wilkinson Solicitors. Available at: https://www.crombiewilkinson.co.uk/site/blog/news/prescriptive-easements.  [Accessed 20 Oct. 2022].

www.lexisnexis.co.uk. (n.d.). Implied easements—common law | Legal Guidance | LexisNexis. [online] Available at: https://www.lexisnexis.co.uk/legal/guidance/implied-easements-common-law.  [Accessed 22 Oct. 2022].

www.lexisnexis.co.uk. (n.d.). Easement Definition | Legal Glossary | LexisNexis. [online] Available at: https://www.lexisnexis.co.uk/legal/glossary/easement?utm_source=google&utm_medium=cpc&utm_campaign=BL_LN_Prospecting_Search_DSA&utm_content=103437&gclid=Cj0KCQiAmaibBhCAARIsAKUlaKTHZeoZmlIdWTZ-XyDBzwUOAzpi6XEvRIog13uAE6v8x0bzj_5kq8caAukTEALw_wcB.  [Accessed 8 Nov. 2022].

 

 

Case Law

 Bakewell management v Brandwood (2004) UKHL 14

Dalton v. Angus (1877)  6 App Cas 740; 46 JP 132; 50 LJQB 689;

30 WR 191; [1881-5] All ER Rep 1, 44 LT 844

European urban st pancreas 2 ltd v Glynn PLSCS 67

Gardener v. Hodgson’s Kingston brewing co. (1903) AC229

Hughes v. Benefice of Frampton-upon-Severn [2021] UKUT 184 (LC),

Loveluck-Edwards v Ideal Developments (2021) EWHC 716 (CH) [2012] WH

Moody v Steggles (1879) 12 CH D 261

Omre v Lyons [2012] EWHC 3308

Penwarden v Ching 1839

Re Ellenborough Park [1955] EWCA Civ 4