Easements Land Law Essay

In the past, English law has been underpinned by a strong and generally unifying desire to protect the rights of persons who could demonstrate a long established de facto enjoyment of land. Indeed, the Prescription Act 1832 legislatively entrenched prescription, and in particular, prescriptive easements. The underlying assumption was that the principle of prescription was necessary to reconcile the conflicting interests of landowners The basis of prescription is that if long enjoyment of a lawful right is shown, the courts will uphold the right by presuming it had a lawful origin. There are three types of prescription, namely, prescription at common law, prescription under the doctrine of lost modern grant and prescription under the Prescription act 1832. The following document will discuss the current short comings of the law of acquisition of easements by prescription and provide detailed study of recommended reforms. The first area to discuss is the acquisition of easements by prescription at common law. To acquire an easement under common law, the claimant has to show that the easement has been enjoyed not just for a long period of time but since time immemorial, that is, since 1189. One of the first identified issues with acquisition under common law was the idea of time immemorial, the issue arose in Bryant v Foot , where a rector tried to establish a claim to a fee for marriages performed in his parish church. Early use was proved but it was held that the fee of 13 shillings could not have been so high in 1189 and therefore the right could not have existed since time immemorial. The presumption of time immemorial can be rebutted by the owner of the allegedly servient land demonstrating that this was not infact the case. This was demonstrated in the case of Duke of Norfolk v Arbuthnot where a claim to prescription failed upon proof that the church in question had been built around 1380 and therefore, even though the right had existed for centuries, it had not existed since 1189. The courts later decided to use the idea of living memory, which later became 20 years. However it has been generally assumed that the ancient common law principle nowadays adds nothing to the other grounds of prescriptive claims as it is virtually impossible to make a successful claim to a prescriptive right at common law. The common law principle of prescriptive acquisition has no place in the modern times. The doctrine of lost modern grant was â€Å"developed because of unsatisfactory nature of common law prescription†. As it was difficult to that a right has been exercised since 1189, the law allowed a much easier test to be applied. Claims are based on a legal fiction which suggests that a grant had been made at one time but the grant had been lost. In Tehidy Minerals Ltd v Norman , it was said that the legal fiction would be adopted â€Å"where there has been upwards of 20 years† uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription. Evidence to raise the presumption must be stronger than that required for prescription at common law, and the fiction can only be relied upon if the claim fails at common law. The current problems with the law of lost modern grant are that the presumption of a grant having existed is strong as such that it cannot be rebutted by proof positive that no grant was made. It was hard to persuade Juries to make the presumption under lost modern grant that a grant had existed, even though there was sufficient evidence to prove that it could not have. The act was passed to remedy the situation, As Thesiger J explained in Sturges v Bridgman, â€Å"The act fixes periods for the acquisition of easments, but it does not alter the character of easements or of the user or enjoyment by which they are acquired†. The main intention behind its drafting was to shorten the time of prescription in certain cases. It has been castigated as â€Å"one of the worst drafted acts on the Statute book†. The act is intended to supplement, rather than displace, the other grounds of prescription. It also has been criticised for being overly complex. Various shortcomings of the act have been outlined in cases and by critics. One of the outlined flaws is that the period of 20 years to find a prescriptive right under the act has to be the 20 years next before action b rought. Therefore the period must be calculated back from â€Å"some suit or action wherein the claim or matter to which such right may relate shall have been or shall be brought into question† . This means that even though the right may have been enjoyed for the past 80 years, the claim will fail unless the last 20 years immediately before the action have been â€Å"without interruption†. The claim will also fail if both tenements had been owned or occupied by the same person anytime immediately before the action. The minimum period of 20 years has to be â€Å"next before action† and without interruption. If the interruption originated 19 years and one day prior to the action, the year’s interruption would not be completed until one day after 20 years. If the dominant owner did not make his claim before the last day of the year he would be too late. As on the next day the fatal period on one year’s interruption would be complete, thus he only has one day only in which to make his claim. The use of vague vocabulary such as the term â€Å"interruption† has amounted to masses of criticisms. Interruption has a special meaning for the purposes of prescription act, it says that even when there is some hostile obstruction, it will not amount to an interruption unless and until the claimant has acquiesced in the obstruction for one year after becoming aware of it and knowing who was responsible for it. Reforms One of the suggested reforms by the Law commission was to â€Å"abolish prescriptive acquisition with prospective effect†. The arguments presented in favour of abolishing prescriptive acquisition do hold some influence. It has been long contended that there is no longer nay moral justification for the prescription of easements. Is it fair to take unfair advantage of a â€Å"good neighbourly† attitude? Prescriptive acquisition allows the dominant owner to get something in exchange for nothing, the owner of the servient land is in no way compensated. For some Law reform parties abolishment of Law of Prescription may be the easiest and safest method of restoring certainty to the law, however to point to the complexity of the law does not address the fundamental issue as to whether prescription in some form is still necessary in land law. Abolishing prescription will not resolve all problems posed by prescriptive easements. There are other possibilities of reform rather than complete abolishment, one of them being abolition being subject to transitional provisions through the land registration system, a transitional provisions period could be set which would allow people who had acquired a prescriptive easement to register it. There is a clear advantage to this, Landowners are placed on notice that they are required to take steps to secure their rights or loose them altogether. In this way, after a specified time limit there is the chance of completely abolishing the acquisition of easements by prescription. It is also likely that the abolition of prescriptive easements would create a legal vacuum in respect to prospective acquisition by prescription. As pointed out earlier, the law of prescription was important for long established de facto users when there was no other way of acquiring an easement, particularly when the servient owner was unwilling to negotiate a bargain for easement rights. Yet the alleged easement served and continued to serve a practical or economic purpose for the dominant owner. Indeed, it was unlikely that a dominant owner would claim an easement by prescription for theoretical or historical reasons only. The claim based on retrospective long user was inextricably intertwined with present value. As English Land Law is going through its transition from the period of possession to registration it is unlikely that the law of prescription will be kept in its current form. In 1998, the Law Commission and H M L Registry considered that far reaching action was necessary. The question will be whether to modify prescription or abolish it altogether, it will depend upon whether long established de facto enjoyment can be accommodated within a system where the frame of reference is registration and the major goal is the protection of bona fide purchasers. Attempts have been made to encounter these issues in the Land Registration Act 2002 and The Commons Act 2006.