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Published: Fri, 02 Feb 2018
Easements and profits
“The law of prescriptive acquisition may be criticized, both as a matter of principle and on grounds of complexity. Is it really necessary to have three concurrent means of prescriptive acquisition? “
In the light of the above statement, critically assess the current operation of the law relating to the acquisition of easements by prescription.
In this question I will attempt to review the current operation of the law in regards to prescriptive easement.
Easements and profits may be acquired as a result of prolonged use, i.e. by prescription, in addition to express easements through deeds or implied grants. There are three co-existing methods of prescriptive acquisition for easements and profits; (i) common law prescription; (ii) the doctrine lost modern grant; and (iii) the Prescription Act 1832. For a person to be successful in his claim for prescriptive easement he must satisfy detailed rules set out in any of the three forms of prescription. There are rules which are common in all three forms of prescription.
The first is the user must be ‘as of right’; for this requirement to be fulfilled by the owner, the user must be nec vi (without force), nec clam (without secrecy), and nec precario (without consent). The first requirement of without force means that the user must not be contentious. The word force has a wide meaning and can include actual physical violence or damage to property. Force can even be a clear protest by the servient owner; the protest may take the form of physical, material or legal action. 
The second condition is without secrecy. Prescriptive easements can be generated only if the use has been ‘open’ – that is to say, ‘of such character that an ordinary owner of land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of the use.  Any secret performance prevents the servient owner from protesting and objecting the acquisition of the right.  Also, even if the act is not performed in secret, the servient owner must have knowledge of the act. 
The third condition is without permission. One obvious case is where the servient owner receives an annual sum from the claimant; this shows a continuing element of permission.  If permission is asked or consent given then the servient owner would be acknowledging that no right exist and would go against prescription  . Providing the servient owner knows of the act and tolerates such act the user is ‘as of right’.
Another common rule to all three forms of prescription is that the user must be continuous. In the case of Hollins v Verney  , the Court rejected the claim for a prescriptive easement, based on the fact that the right had only been exercised on three occasions each separated by a period of 12 years.
An additional requirement to be fulfilled is that the user must be by or on behalf of a fee simple owner against a fee simple owner. The requirements are also more specific. The user must be against a fee simple owner of the servient tenement and the dominant tenement user must be by or on behalf of a fee simple owner. If the user is on behalf, the claim for an easement will be for the fee simple owner, but the tenant may enjoy the benefit during his lease, as demonstrated in the case of Palk v Shinner  . Also a tenant cannot prescribe for an easement against his landlord or vice versa.
Furthermore, the two parties either on behalf of or fee simple owner themselves must be against a different fee simple owner; therefore a tenant cannot acquire an easement against another tenant of the same landlord. 
This requirement and specific rule are complex and problematic. This rule is only in English common law and does not appear in other countries common law. i.e. Ireland
The first method for prescriptive acquisition is prescription at common law. This method implies that a continuous user as of right for the past 20 years or more will raise a presumption of user since time immemorial i.e. 1189. It is not necessary to prove use stretching back to 1189, providing the last 20 years are verified. But the presumption can be rebutted by showing that since time immemorial the right could not or was not executed. The presumption can also be rebutted by showing that the servient and dominant tenements were in the ownership of the same person. For these reasons the common law prescription is rarely successful. It has been criticised for being limited and absurd in its application. 
The second method of prescription is the doctrine of lost modern grant. The doctrine allows a ‘user as of right’ who can provide evidence of 20 years in modern times i.e. after 1189, a prescription for easement. The support of this doctrine is based on fiction, it concedes that the user cannot prove ‘user as of right’ back to 1189, but allows the prescription of a modern grant through evidence, and presumes that the deed has been lost. This is the advantage of lost modern grant over common law prescription, lost modern grant does not presume user since time of immemorial, only from ‘modern times’.
Cases such has Dalton v Angus  and Tehidy Minerals v Norman  have indorsed the doctrine and shown that proof of 20 years or more would raise presumption. Buckley I.J. concluded in the case of Tehidy;
“In our judgement Angus & Co. v. Dalton decides that, where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to ful”l the requirements of prescription, then … the law will adopt a legal “ction that such a grant was made, in spite of any direct evidence that no such grant was in fact made. If this legal “ction is not to be displaced by direct evidence that no grant was made, it would be strange if it could be displaced by circumstantial evidence leading to the same conclusion, and in our judgement it must follow that circumstantial evidence tending to negative the existence of a grant (other than evidence establishing impossibility) should not be permitted to displace the “ction.”
So it would appear while the presumption cannot be rebutted by proving that no grant has in fact been made. Thought the presumption of lost modern grant can be rebutted by showing throughout the period the grant existed there was no person legally competent to make a grant.
The final means of acquisition of easements is prescription under the Prescription Act 1832. The initial aim of the Act was to remove the complications and absurdity from the other two methods of prescription, unfortunately, the provisions were very badly drafted and created complications of its own. At present all three methods exist side by side. The Act covers situations which are not covered by the other two methods.
For an easement to arise from the Act, the right must have been in continuous use for the last 20 years, this is the short period. After this time the easement is prescribed, but capable of challenge. After 40 years (long period), of ‘user as of right’ for easements, the right becomes absolute, it can no longer be rebutted. The Act does not remove the standard requirements as mentioned before for the other two methods.
The Prescription Act has certain requirements which stand alone from the other two methods. Section 4 of the Prescription Act 1832 states the relevant period in each case is that ‘next before action’. This requirement means that however long the period of ‘user as of right’, no absolute right is acquired until it is established in action  . The Act would be of no use and one of the other two methods would have to be used. Also another requirement is that the user must be ‘without interruption’. Interruption is classed as anything more than a year.
In Court of Appeal, the case of Tehidy, Buckley LJ stated;
“The co-existence of three separate methods of prescribing is, in our view, anomalous and undesirable, for it results in much unnecessary complication and confusion. We hope that it may be possible for …a long-overdue simplification in this branch of the law.”
The need for reform and update has been present for a long time, but no action has been taken. Common law prescription is out of date, bizarre and ineffective in application. Lost modern grant provides some sense of stability for prescription but is based on ‘legal fiction’; as a result the courts have held that it can only be relied upon if the other forms of prescription fail. The Prescription Act was introduced to bring vital structure and facilitate the prescription of easements, though it would seem it created more complexity and problems.
It seems the single most important point is the elimination of the existing methods of prescription and replaced with a single statutory method and to set this as the starting point of the new reform. Choosing set ideas such as a qualifying period for prescription i.e. 20 years. Other changes need to follow in this, it would be recommended to keep ‘as of right user’; as well as the requirements of nec vi, nec clam and nec precario.
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