The following Property guidance 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
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