Q&As

Where an easement has been acquired by prescription, does that right extend to replacement of any service media which might be the subject of the right?

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Published by a LexisNexis Property expert
Published on: 11 December 2020
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This Q&A assumes that:

  1. •

    there is no dispute over the existence of the easement

  2. •

    the Servient owner is unwilling to repair/replace the septic tank themselves

  3. •

    replacement (as opposed to repair) has been determined as the only option

Extent of easement

As the acquisition of a right on the basis of long use rests on the presumption of a grant, the extent of the right is measured by the extent of the user. The starting point for assessing the extent of the right acquired must therefore relate to what has, in fact, been enjoyed.

A right acquired by Prescription is not necessarily limited to use for the exact purposes for which the Dominant tenement was used during the period of prescription, but may be used for analogous purposes or for other purposes which impose no greater burden on the servient tenement (on the principle that the greater includes the lesser). Indeed Stanning v Baldwin demonstrates

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Jurisdiction(s):
United Kingdom
Key definition:
Prescription definition
What does Prescription mean?

A means of acquiring an easement or Profit à prendre by long use.

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