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Prescriptive Easements and the Doctrine of Lost Modern Grant

04 March 2022

This whistle-stop guide to prescriptive easements explores how they can be formed and provides a brief commentary on the key elements required to enshrine a prescriptive right. 

Introduction

Prescriptive easements emerge from the mists of time as rights acquired through the beneficial land owner's long use and/or enjoyment.

There are three fundamental building blocks required for a prescriptive easement to exist and this article considers these and how to protect prescriptive rights.

The Building Blocks

  1. First there needs to be a right

There are no hard and fast rules about the types of rights that can be acquired, prescriptive easements can be gained in respect of a range of matters, for example rights of access and rights to services.

However, if a right could not have been lawfully granted by deed, (e.g. a right that is contrary to a statutory prohibition) then it cannot be acquired by prescription.

  1. Second is the "prescriptive element"

This means that the use needs to have been enjoyed "as of right" - derived from the Latin, nec vi, nec clam, nec precario - meaning 'without force, without secrecy, without permission' - for a long period of time (at least 20 years).

The "as of right" element is crucial as the right cannot be exercised by consent, secrecy, force or other nefarious means.

  1. The third element is continuous use

The right needs to have been exercised without interruption - meaning that the servient land owner cannot have obstructed its enjoyment and the dominant land owner cannot have made a clear intention to abandon the right either.

If all three of these building blocks are met the law presumes that the right was lawfully granted.

Protecting the Existence of a Prescriptive Easement

  1. Common Law

This involves advancing a defence through the Courts, against a claim seeking to extinguish a prescriptive easement. The Common Law route cannot be used as a course of action in its own right.

The beneficiary land owner will need to demonstrate that the right or use has been enjoyed since before 1189 AD. As a general rule of thumb, if you can demonstrate that the use has existed for at least 20 years, then it is presumed that the right stretches back to 1189. However, the owner of the burdened/ servient land can easily rebut this if they can prove:

  • That the right did not exist all the way back to 1189; or
  • That both the dominant and servient land had been owned by the same party during the intervening period – bringing the right and the burden into common ownership extinguishes them.
  1. Under Statute

Much like the Common Law route, the Prescription Act 1932 can only be used as a defence against an action being brought to end the right, rather than an action to have the prescriptive right formalised.

Under the Act the time period that need to be proven is a period of 20 years (or alternatively 40 years) of continuous use. Importantly, the right time period must be those years immediately prior to the extinguishing action being brought.

  1. Doctrine of Lost Modern Grant

There is broad tool available to parties seeking to protect a long running right, provided courtesy of the "Doctrine of Lost Modern Grant".

Under this route the 20 year period does not need to immediately predate the application, allowing for possible interruptions to use over time. Interestingly, under the Doctrine a beneficial land owner doesn’t need to produce evidence that a formal grant was ever made, it is just presumed to have been made and lost, if the building blocks above have been satisfied.

For servient land owners this can be particularly difficult to defend against. There are weaknesses to this method though. If it can be demonstrated that the party originally granting the right either lacked the mental or legal capacity to grant the right, then the claim for prescription will fail.

Commentary

Prescriptive easements can create a headache for a servient land owners and have the potential to frustrate any future plans that they might have for their land. Conversely, for beneficial land owners prescriptive rights can ensure that long running rights gain recognition and protection even where they are not formally documented.

It is important to ensure that careful due diligence is undertaken when buying and/or developing property. To find out how the Public Sector Real Estate can assist you with your regeneration schemes and development projects, please get in touch with a member of our team below.

Authors: Michael Bogahalanda & Charlotte Marshall

Further Reading