7.2.3 Acquisition by Prescription Lecture – Hands on Examples
The chapter thus far has sought to provide an explanation of how else an easement or profit à prendre may be created, i.e. by prescription or by reservation. We have also seen how an easement or profit à prendre may be terminated. Finally, we have seen when a transfer of land, whether servient or dominant land, successfully transfers to the new owner the dominant/servient status which hitherto pertained to the land. This section provides a series of problem questions that probe different areas of the matters we have just been examining. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.
Before we get to those questions, we shall give a quick overview of the steps for prescription, reservation, and termination.
For Prescription to be valid in common law, the following questions have to be answered in the affirmative:
- Are both of the relevant parties owners of the land in fee simple?
- Has there been continuous user by the party hoping to claim the right i.e. use for 20 or more years on a regular basis?
- Was the user made nec vi, nec clam and nec precario (“without force, without secrecy, and without permission”)?
If the question is based on statute, is the claim to the right being ‘absolute and indefeasible’ adequately supported by the period of use?
For reservation, the questions are as follows:
- Was the reservation made expressly?
- If not, can it be suggested that the reservation is nevertheless valid because it is a) necessary or b) mutually intended?
- If the answers to one of the above are yes, reservation has occurred. If the answers to both questions is no, there is no valid reservation.
Termination meanwhile requires the consideration of the following steps:
- Has a unity of ownership emerged i.e. are both the hitherto servient and dominant tenements owned by the same person?
- If not, has there been express release, which requires express wording that the right shall no longer exist and is likely to be in exchange for valuable consideration?
- If not, has the right been abandoned, or have the circumstances changed ‘so drastically’ that it would ‘offend common sense and reality’ to maintain that the right of the dominant estate exists?
- If any of the above is answered in the affirmative, the right has been terminated. Otherwise, the right continues to subsist, see in particular Benn v Hardinge (1992).
Q1. Aaron and Brenda are respectively the freehold owners of Whiteacre and Blackacre. Both these plots of land are adjacent to one another. For around 20 years Aaron has been going across Brenda’s land to reach the nearby motorway, using it about six times a year. Brenda would see him crossing the land from her house. The two individuals have never discussed Aaron’s use of Brenda’s land nor reached any agreement. Brenda is now considering asking Aaron not to use the land.
A1. We have in this case the ingredients of prescription: 20 years use, on arguably regular occurrences (six times a year) and as per the requirements of nec vi, nec clam and nec precario. You can note that this is said to be for “around” 20 years and therefore such ambiguity ought to be made clear in order for the answer to be definitive. Provided that the use has been for 20 years or more, Aaron has acquired a right of easement (a right of way) by prescription.
Q2. Chloe owns Greenacre, a plot of land that includes a house and is surrounded on all sides by farmland. Chloe agrees to transfer the farmland to Derek, whilst Chloe retains the house in the middle of the land. Chloe forgets to ask Derek to allow her to cross the land from time to time as she needs access to the main road, though Chloe recalls Derek saying something to the effect of “you’ll probably need to be able to get to the road.”
A2. Chloe here is confronted with the situation brought about by reservation. She has not expressly reserved a right of way across the land. The next question to consider is whether Chloe had reserved a right of way by implication. On the point of mutual intention, Derek’s statement suggests he understood what Chloe would require, but as a counterpoint Chloe never communicates with Derek about the usefulness of a right of way. That being said, as a matter of necessity, it appears there is a right of reservation: her house is surrounded on all sides by Derek’s land, and so in order to reach anywhere (in particular the main road) she must necessarily cross his land.
Q3.In the year 1841 Edgar agreed to grant a right of way across his land (Blueacre) to Frederick (who owns the nearby plot of Redacre). Frederick uses the right of way only sporadically, preferring instead to use a nearby route. In 2016, the respective successors of Edgar and Frederick – Grace and Helen – are now considering their options. Helen, like many of the previous owners of Redacre, never uses the right of way across Grace’s land. Grace asks you whether this right of way has effectively been abolished.
A3. As per the case of Benn v Hardinge (note that it is 175 years since the easement was granted), it can be very difficult, perhaps even impossible, for an easement to be terminated as a result of lack of use. This, as you will recall, is due to the court’s view that a right of way is a valuable asset and thus cannot be disposed of without evidence that the parties agree to its termination. Therefore, the right of way continues to subsist.
Q4.Ivan owns Brownacre and Jane owns Greyacre. The latter is registered land. Ivan has an implied right of way over a part of Jane’s land. Jane agrees to transfer all of Greyacre to Ivan. Ivan comes to you for advice about the easement. Further, what would your advice be if Ivan later transfers Greyacre to another party?
A4. Because there is now a unity of ownership across Greyacre and Brownacre, the easement is effectively suspended, because the dominant and servient tenements must each be owned by different persons, not the same person. Note the word “suspended”; if Ivan transfers Greyacre (or indeed Brownacre) to a third party, then the right is effectively resurrected, provided that – as we were talking about with third parties and burdens – there is sufficient notice, or that the easement would be obvious on a ‘reasonably careful inspection’ of the land.
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