By Law Teacher
THE LAW ESSAY PROFESSIONAL
7.2.1 Acquisition by Prescription – Introduction
Welcome to the seventh topic in this module guide – Acquisition by Prescription! This topic follows on from the previous topic which examined the creation of profits à prendre and easements in the framework of their formation.
Below are some goals and objectives for you to refer to after learning this section.
Goals for this section:
- To understand the concept, essential elements and effects of prescription.
- To understand the difference between express reservation and implied reservation.
- To understand how profits à prendre and easements are terminated and the matters relating to their termination.
Objectives for this section:
- To be able to understand how profits à prendre and easements can be transferred to third parties.
- To be able to identify how the transfer of a benefit of a legal easement, a legal profit and an equitable easement and profit à prendre would transpire.
- To be able to identify how the transfer of a burden of a legal easement, a legal profit and an equitable easement and profit à prendre would transpire.
7.2.2 Acquisition by Prescription Lecture
This chapter follows on from the previous chapter in which easements and profits à prendre were examined in the context of their creation. We will be touching on creation here also, though in different forms: prescription and reservation. We will also look at how easements and profits à prendre may be terminated and the effect such rights have on third parties.
The concept of prescription borrows from two distinct concepts: express grants and long user. What prescription does is that it enables the person claiming a right of prescription to refer to a period of long use of an alleged right, over a period of 20 years, and by dint of that 20 years (or more) of use were effectively granted that right. This should be distinguished from adverse possession. Prescription is about the owner of the servient land being deemed to have acquiesced to the long use (Mills v Silver ).
Essential elements of prescription
Invoking prescription requires the fulfilment of various criteria. The criteria are as follows:
- User in fee simple
- Continuous user
- User as of right: The right of prescription is subject to certain limits:
- User nec vi
- User nec clam
- User nec precario
The problem with the concept of user nec precario is that the borderline between the giving of permission and deemed acquiescence may not be clear. In order for true acquiescence (and not simply a tolerance or permission) to be deemed to apply, the court must be satisfied of the conditions in Dalton v Angus & Co(1881).
Effects of prescription
Where a prescriptive easement, whether at common law or in the statutory form, is shown to exist by satisfying the above conditions, it is said to attain a legal (as opposed to equitable) status.
The common law maintains a fiction in that if a prescription is found to apply, then the court inevitably finds that the right has existed from before remembered time, meaning since the year 1189. Given the arbitrariness of this choice of date, it is possible to frustrate the concept of prescription if the right is exercised over a structure that clearly was constructed after 1189 (Duke of Norfolk v Arbuthnot(1880)).
Although we use the term “prescription”, you may instead encounter the term “lost modern grant.” This is intended to counter the arbitrariness of the right existing since time immemorial (1189 CE).
Prescription and statute
When claiming a right of prescription under statute via the Prescription Act 1832 (PA), the above conditions would still apply. However, unlike the common law position of prescription, there is the idea of certain rights being ‘absolute and indefeasible’ despite evidence of use after 1189.
For each of these rights, the period claimed must be the period ‘next before some suit or action’ in which the claim is challenged (s.4). Therefore, if the right is interrupted for any period of time in the 20 year/40 year/60-year period, then time ceases to run for the duration of that dispute (Mills v Silver ).
A reservation is the mirror opposite of a grant. A grant is a right given to a holder of dominant tenement land over servient tenement land. A reservation is where X transfers Blackacre to Y, but X reserves for herself certain rights, i.e. easements or profits à prendre, over a portion of Blackacre.
Where X is in the process of transferring Blackacre to Y, it remains open to X to consider reserving a portion of that land for X’s own use by including in the deed of transfer (or whatever document is used to effect the transfer) words to the effect that X reserves that right of use. Where such wording is included, it will be construed strictly against the dominant owner who set the wording of the reservation, and the reservation operates ‘at law without… any regrant’ (Law of Property Act 1925, s.65(1)).
As we have seen previously, in the context of implied easements the court is more likely to imply easements in favour of the transferee (Y in our example) rather than in favour of the transferor (X in our example), such as in Peckham v Ellison(2000) 79 P & CR 276, CA per Cazalet J). It follows that a transferor should not seek to rely on implied reservation, and should instead express their intentions as to a reservation in clear and unambiguous terms in the document effecting transfer of the land (Wheeldon v Burrows(1879) 12 Ch D 31, CA). There are only two ways in which reservation may be implied: necessity, and common intention.
There are several ways in which the common law may find that a right of easement or profit à prendre has been extinguished subsequent to its creation. In registered land, there is an additional requirement for the registrar to close the registered title to any estate which the registrar is satisfied to have been determined (Land Registration Rules 2003, r.79(2)).
You may recall that one of the distinct characteristics of an easement is that the dominant and servient tenements are each owned by different persons. Thus, if both these areas of land fall into the ownership of one party, then the easement by operation of law ceases to exist, or at least is suspended for the duration of that unity of ownership (Payne v Inwood(1997)).
An easement or profit à prendre can be terminated by a release, and a release can either be express or implied:
- Express release of a legal easement or profit à prendre entails wording in a deed that says the right shall no longer exist (Lovell v Smith(1857) 3 CBNS 120) and the release is usually made for valuable consideration.
- Implied release will arise where the easement or profit à prendre has been abandoned by the exercise of the right, and there is evidence of a clear intention to release the right in question.
Case in focus: Benn v Hardinge(1992) 66 P & CR 246
Change of circumstance
There is no recognition in statute that an easement or profit à prendre can be made redundant and obsolete by the passing of time. However, in case law there is a recognition that such rights can be extinguished due to their obsolescence.
Case in focus: Huckvale v Aegean Hotels Ltd
Termination of equitable easements and profits
As with legal easements, an equitable easement can be terminated where the same person comes to own both the dominant and servient tenements. Further, an equitable easement can be released either expressly or impliedly.
Given that easements and profits à prendre are proprietary in nature – meaning they attach to the land rather than to the persons owning the land – it is entirely feasible for those types of rights to be transferred to third parties. Indeed, an easement cannot be transferred independently of the land that such a right benefits/acts to burden.
Transfer of benefit of legal easements
Where the land is registered, the benefit of an express easement should be entered into the proprietorship register. The transfer of the dominant land effectively means the transfer of two ‘estates’: the estate of the freehold/leasehold and the estate of the easement/profit à prendre (Land Registration Act 2002 s.59(1) Schedule 2 paragraph 7(2)(b)). The benefit of implied and prescriptive easements can also be registered in the estate of the dominant land (Land Registration Rules 2003, r.73A).
Where the land is unregistered, it becomes affixed to the tenement in the same way that fixtures are annexed to the realty (Law of Property Act 1925, s.187(1)), and therefore upon transfer of the land the benefit of the easement is transferred also to the transferee (Law of Property Act 1925, s.62(1)-(2)).
Tenants likewise may benefit from the transfer of an easement.
Transfer of the benefit of legal profits
For both registered and unregistered land the benefit of a profit à prendre as it applies to the given dominant land can be passed to the transferee upon transfer of the dominant land (Land Registration Act 2002 Schedule 2, paragraph 7(2)(b)). This is distinct from a transfer of a legal easement, because as mentioned above the act of transfer carves out a separate estate for the legal easement (Lovett v Fairclough(1991) 61 P & CR 385, ChD). For registered land, it is open to the transferee to have the profit à prendre entered into the land registry as a separate ‘registered estate’.
Transfer of benefit of equitable easements and profits
The benefit of an equitable easement or profit à prendre may only be transferred as pertaining to the land it is intended to benefit, not the transferees as such. Any method of transfer is sufficient to transfer those rights along to the transferee (Law of Property Act 1925 s.62(1)-(2)) as the equitable rights are annexed to the dominant land in the same manner and just as effectively as legal rights (Leech v Schweder (1874) 9 Ch App 463).
As one may expect, the validity of a transferred beneficial easement or profit à prendre is contingent in part on the validity of the servient tenement, particularly where the servient tenement is subsequently transferred.
Transfer of burden of legal easements
With registered land and expressly created legal easements, there has to be the fulfilment of the ‘registration requirement’, namely for the legal easement to have been accurately and correctly recorded in the charges register of the servient estate. If valid, then that entry in the charges register will bind all subsequent owners of that servient land (Land Registration Act 2002, s.29(1) and 2(a)(i)).
If the legal easement arose either as a result of implication or of prescription then that burden will tend to ‘override’ the registered disposition of land. The implied or prescribed easement will operate as a burden on the transferee of the servient land so long as the easement was ‘obvious on a reasonably careful inspection of the land’ (Land Registration Act 2002, s.29(1), (2)(a)(ii), Schedule 3, paragraph 3(1)).
In unregistered land, there is less scope for an inadequate transfer to frustrate the operation of dominant tenement rights. By virtue of its legal status alone, an easement over unregistered land will bind all persons, in particular third-party purchasers of that servient land.
Transfer of the burden of legal profits
Upon the transfer of a legal and expressly created profit à prendre, such a burden is necessarily created in the charges register for the servient estate. As such, it will inevitably bind all subsequent transferees of the registered estate of the servient land (Land Registration Act 2002, s.29(1), (2)(a)(i)). As with legal easements in unregistered land, unregistered land subject to a profit à prendre will inevitably bind all subsequent purchasers of the servient tenement estate.
Transfer of the burden of equitable easements and profits
As with the above examples of legal easements and profits à prendre, the burden of such a right can be transferred where that burden lies in equity.
In registered land, any equitable easement or profit à prendre will bind a purchaser of title of the servient estate where they take the property otherwise than for valuable consideration (Land Registration Act 2002, s.28(1)).
Where an equitable easement or profit à prendre is created after the commencement of the LRA 2002, they cannot be deemed as an interest capable of overriding a registered disposition of the servient land. If the equitable easement or profit à prendre is created before the commencement of the LRA 2002, then that burden will apply (Celsteel Ltd v Alton House Holdings Ltd ).
In unregistered land, if an equitable easement or profit à prendre is created on or after 1st January 1926, it can be made enforceable against subsequent disponees of the servient tenement land. If the easement or profit à prendre is created prior to 1st January 1926, such a right will be enforceable against a purchaser of the servient land so long as they have been given sufficient notice.
7.2.3 Acquisition by Prescription Lecture – Hands on Examples
The chapter thus far has sought to provide an explanation of how else an easement or profit à prendre may be created, i.e. by prescription or by reservation. We have also seen how an easement or profit à prendre may be terminated. Finally, we have seen when a transfer of land, whether servient or dominant land, successfully transfers to the new owner the dominant/servient status which hitherto pertained to the land. This section provides a series of problem questions that probe different areas of the matters we have just been examining. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.
Before we get to those questions, we shall give a quick overview of the steps for prescription, reservation, and termination.
For Prescription to be valid in common law, the following questions have to be answered in the affirmative:
- Are both of the relevant parties owners of the land in fee simple?
- Has there been continuous user by the party hoping to claim the right i.e. use for 20 or more years on a regular basis?
- Was the user made nec vi, nec clam and nec precario (“without force, without secrecy, and without permission”)?
If the question is based on statute, is the claim to the right being ‘absolute and indefeasible’ adequately supported by the period of use?
For reservation, the questions are as follows:
- Was the reservation made expressly?
- If not, can it be suggested that the reservation is nevertheless valid because it is a) necessary or b) mutually intended?
- If the answers to one of the above are yes, reservation has occurred. If the answers to both questions is no, there is no valid reservation.
Termination meanwhile requires the consideration of the following steps:
- Has a unity of ownership emerged i.e. are both the hitherto servient and dominant tenements owned by the same person?
- If not, has there been express release, which requires express wording that the right shall no longer exist and is likely to be in exchange for valuable consideration?
- If not, has the right been abandoned, or have the circumstances changed ‘so drastically’ that it would ‘offend common sense and reality’ to maintain that the right of the dominant estate exists?
- If any of the above is answered in the affirmative, the right has been terminated. Otherwise, the right continues to subsist, see in particular Benn v Hardinge (1992).
Q1. Aaron and Brenda are respectively the freehold owners of Whiteacre and Blackacre. Both these plots of land are adjacent to one another. For around 20 years Aaron has been going across Brenda’s land to reach the nearby motorway, using it about six times a year. Brenda would see him crossing the land from her house. The two individuals have never discussed Aaron’s use of Brenda’s land nor reached any agreement. Brenda is now considering asking Aaron not to use the land.
A1. We have in this case the ingredients of prescription: 20 years use, on arguably regular occurrences (six times a year) and as per the requirements of nec vi, nec clam and nec precario. You can note that this is said to be for “around” 20 years and therefore such ambiguity ought to be made clear in order for the answer to be definitive. Provided that the use has been for 20 years or more, Aaron has acquired a right of easement (a right of way) by prescription.
Q2. Chloe owns Greenacre, a plot of land that includes a house and is surrounded on all sides by farmland. Chloe agrees to transfer the farmland to Derek, whilst Chloe retains the house in the middle of the land. Chloe forgets to ask Derek to allow her to cross the land from time to time as she needs access to the main road, though Chloe recalls Derek saying something to the effect of “you’ll probably need to be able to get to the road.”
A2. Chloe here is confronted with the situation brought about by reservation. She has not expressly reserved a right of way across the land. The next question to consider is whether Chloe had reserved a right of way by implication. On the point of mutual intention, Derek’s statement suggests he understood what Chloe would require, but as a counterpoint Chloe never communicates with Derek about the usefulness of a right of way. That being said, as a matter of necessity, it appears there is a right of reservation: her house is surrounded on all sides by Derek’s land, and so in order to reach anywhere (in particular the main road) she must necessarily cross his land.
Q3.In the year 1841 Edgar agreed to grant a right of way across his land (Blueacre) to Frederick (who owns the nearby plot of Redacre). Frederick uses the right of way only sporadically, preferring instead to use a nearby route. In 2016, the respective successors of Edgar and Frederick – Grace and Helen – are now considering their options. Helen, like many of the previous owners of Redacre, never uses the right of way across Grace’s land. Grace asks you whether this right of way has effectively been abolished.
A3. As per the case of Benn v Hardinge (note that it is 175 years since the easement was granted), it can be very difficult, perhaps even impossible, for an easement to be terminated as a result of lack of use. This, as you will recall, is due to the court’s view that a right of way is a valuable asset and thus cannot be disposed of without evidence that the parties agree to its termination. Therefore, the right of way continues to subsist.
Q4.Ivan owns Brownacre and Jane owns Greyacre. The latter is registered land. Ivan has an implied right of way over a part of Jane’s land. Jane agrees to transfer all of Greyacre to Ivan. Ivan comes to you for advice about the easement. Further, what would your advice be if Ivan later transfers Greyacre to another party?
A4. Because there is now a unity of ownership across Greyacre and Brownacre, the easement is effectively suspended, because the dominant and servient tenements must each be owned by different persons, not the same person. Note the word “suspended”; if Ivan transfers Greyacre (or indeed Brownacre) to a third party, then the right is effectively resurrected, provided that – as we were talking about with third parties and burdens – there is sufficient notice, or that the easement would be obvious on a ‘reasonably careful inspection’ of the land.