The following Property practice note provides comprehensive and up to date legal information covering:
An easement may be established by long use:
at common law
under the doctrine of lost modern grant (a species of common law prescription)
by statute (under the Prescription Act 1832 (PA 1832))
It is possible to seek to establish a claim under each of these methods in the alternative, but a claimant can only succeed on one of them, so is at risk as to costs.
The doctrine of prescription is a mode of establishing an easement, not creating one. It is based on the presumption of a grant, ie that the easement has validly existed before the claim is made, but has been lost or destroyed. The presumption arises from the fact of enjoyment of the right, so a right claimed by prescription must be capable of being an easement:
there must be a dominant and a servient tenement
the easement must accommodate the dominant tenement
the dominant and servient owners must be different persons, and
the easement must be capable of forming the subject matter of a grant
There is no requirement that time cannot start to run, for the purpose of a prescription claim, unless the servient owner could bring an action in trespass against the dominant owner.
Prescription at common law is based upon a presumed grant made prior to 1189, that is the start of legal
**Trials are provided to all LexisPSL and LexisLibrary content, excluding Practice Compliance, Practice Management and Risk and Compliance, subscription packages are tailored to your specific needs. To discuss trialling these LexisPSL services please email customer service via our online form. Free trials are only available to individuals based in the UK. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial.
To view the latest version of this document and thousands of others like it, sign-in to LexisPSL or register for a free trial.
Existing user? Sign-in
Take a free trial
What is a res judicata?A res judicata is a decision given by a judge or tribunal with jurisdiction over the cause of action and the parties, which disposes, with finality, of a matter decided so that it cannot be re-litigated by those bound by the judgment, except on appeal.Final judgments by
Coronavirus (COVID-19): During the current pandemic, legislation and changes to practice and procedure in the courts and tribunals have been introduced, which affect the following:•proceedings for possession•forfeiture of business leases on the grounds of non-payment of rent•a landlord's right to
STOP PRESS: The Corporate Insolvency and Governance Act 2020 contains provisions which, on a temporary basis (presently until 31 December 2020) impose significant limitations on the ability for a creditor to seek a winding-up order against a company. For further reading, see Practice Note: Corporate
This Practice Note considers claims for damages for breach of statutory duty. For guidance on claims for damages for a negligent breach of duty of care outside a statutory duty, see Practice Notes:•Negligence—when does a duty of care arise?•Negligence—when is the duty of care breached?Breach of
0330 161 1234
To view our latest legal guidance content,sign-in to Lexis®PSL or register for a free trial.