Acquisition of easements by long use
Acquisition of easements by long use

The following Property practice note provides comprehensive and up to date legal information covering:

  • Acquisition of easements by long use
  • Presumed grant
  • Common law prescription
  • Commencement of legal memory
  • User as of right
  • Acquiescence
  • Continuous enjoyment
  • Lost modern grant
  • Prescription Act 1832
  • Interruption
  • More...

Presumed grant

An easement may be established by long use:

  1. at common law

  2. under the doctrine of lost modern grant (a species of common law prescription)

  3. 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:

  1. there must be a dominant and a servient tenement

  2. the easement must accommodate the dominant tenement

  3. the dominant and servient owners must be different persons, and

  4. 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.

Common law prescription

Commencement of legal memory

Prescription at common law is based upon a presumed grant made prior to 1189, that is the start of legal

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