Acquiring an Easement by Prescription

1. 1. Has Mr Wright acquired an easement by prescription?

Common Law recognises the right of a third party over another party’s land, be for whatever purpose. Often this right is of an inferior nature to that of the title holder and can exist in both registered and unregistered land alike; the only difference is the protection afforded.

A legal easement is ultimately a jus in rem, and not a mere jus in personam; that being that the legal easement binds the land over which the right is exercisable^[1]. Halsbury assists us by giving the definition of an easement as “a right annexed to land to utilise other land of different ownership in a particular manner or to prevent the owner of the other land from utilising his land in a particular manner”^[2].

The essential characteristics of an easement have been long established and bound and enshrined in the workings of the modern day Land Law system^[3]. The principle that there must be (a) a dominant tenement^[4] and (b) a servient tenement^[5]; a strict principle of benefits and burdens.

It follows that:

“If X, the owner of Blackacre, has acquired a right of way over the adjoining tenement Whiteacre, he is entitled to an easement of way not because he is X, but because he is the fee simple owner of Blackacre. The easement exists because Blackacre exists^[6].”

Therefore it naturally follows that an easement cannot exist in gross but must always be appurtenant to a dominant tenement which it accommodates, it is nevertheless ‘land’ for the purposes of the 1925 property legislation.

The dominant tenement generally must consist of a corporeal real property; simpler placed being land and buildings upon the land^[7]. Yet an easement may, “be appurtenant to a wholly incorporeal hereditament^[8]” or “to a hereditament partly corporeal and partly incorporeal^[9]”. Halsbury assists by clarifying, “The true test of appurtenancy is the propriety of relation between the principal and the adjunct, which may be found out by considering whether they so agree in nature and quality as to be capable of union without any incongruity^[10][11]”. Ultimately the deciding factor has been seen that an easement must confer a real and “practical benefit^[12]”.

A further essential characteristic is that the dominant and servient tenements must be different persons^[13].

There clearly can be no contention in that Mr Wright is currently enjoying the benefit of an easement to pass and re-pass over orchard. His land neighbours and adjoins that of Clarissa’s, he has the benefit of passing and re-passing over the land in question and Clarissa has the burden; an easement exists.

There are several types of easement, but in fairness the main easement that will apply to Mr Wright’s situation is that of prescription. There are three methods in which Mr Wright could claim his easement by way of prescription; by common law principles; by the principle of the lost common grant; or under the Prescription Act 1832^[14].

When a private right of way exists, it has often existed without consent or objection from the land owner^[15]. There having been no expressed words of consent to the right of way, ultimately the only mode and mean of measuring the extent of the right of way enjoyed is the extent of the enjoyment. This is ultimately shown simply by evidence of use^[16]. Ultimately which ever method of claiming the right is used, the user must have and be clearly able to demonstrate that they have been a user for 20 years or more.

Common law provides that: (1) “the user must be of right^[17]”; (2) User must be continuous^[18]; and the right must have been one that can be lawfully granted^[19]. With this in mind, Has Mr Wright acquired an easement by prescription? The answer simply is yes. Applying the law, an easement does exist, as already discussed; there is a dominant and servient tenement relationship. Has his right been acquired by prescription. The answer again is yes. Mr. Wright has been user of the right of way for more than 20 years^[20]. Furthermore, he has been user without permission and has the right and enjoyed it.

Given this situation, this is an overriding interest which is disclosable upon first registration or the registration of a legal transfer. Therefore the transfer from Clarissa to Mr Dixon needs to disclose the easement that is place.

2. 2. How is Mr Dixon affected by Mrs Jennifer’s rights?

Prior to the Land Registration Act 2002, the physical possessor of land, subject to certain conditions, could register themselves as the owner of the land. Often the prescribed period of time ensuring that a person could or could not create a legal registerable interest in the land was given by the Limitation Act 1980. The prescribed period of time was 12 years^[21].

An application to be registered under the Land Registration Act 1925 could be made by a person “who claimed to have acquired a right under the Limitation Act 1980 to a registered estate in land^[22]”.

The basics of possessory title must be complied with. These are:

1. 1. the squatter must have factual possession of the land; and
   2. the squatter has the necessary intention to possess the land; and
   3. the squatter’s possession is without the owner’s consent; and
   4. that the squatter has maintained possession for at least 12 years.

What would constitute factual possession? This has been addressed by the leading case of Powell v. McFarlane^[23]. Slade LJ provided that “Factual possession signifies an appropriate degree of physical control. It must be a single and possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so”.

Mrs Jennifer has fenced off the land from the remaining area of the orchard and has further grazed her cattle on the land. From this, the question asked, has she used the land as a normal user would? From the facts, yes.

The next issue is the requirement that the squatter had the necessary intention to possess the land. It needs to be remembered that the intention here is not the intention of acquiring the land but the intention of the squatter to have actual possession of the land^[24]. From the facts, it is again clear that the intention of Mrs Jennifer is to have actual possession of the land. She has fenced the area of land off from the main area of the orchard showing that she is has taken possession of the land.

The final question is whether the permission is with consent of the actual owner of the land. Again, we can turn to Slade LJ to assist “Possession is never ‘adverse’ within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in ‘adverse possession’ as against the owner of the paper title^[25]”.

From the facts, it appears that permission may have been implied. Clarissa has not raised any objections to the fencing off of the area of land. It appears that such consent can have been implied since no objections have been raised for over 12 years.

Yet, there has been no express permission and therefore cannot imply otherwise.

Under the Land Registration Act 1925 Mrs Jennifer’s right to the land could be entered onto the register at HM Land Registry with the title being possessory.

However, under the new regime provided by the Land Registration Act 2002 the squatter would be entitled to apply to HM Land Registry after 10 years as oppose to the 12 years provided by the Limitation Act 1980; any registered proprietor, now being Mr Dixon, would be notified of the application for adverse possession. Provided no objections are raised, Mrs Jennifer will take title to the area she has fenced off.

However, if Mr Dixon does object Mrs Jennifer’s application will be rejected by the Land Registry unless it would be “unconscionable to reject the application; or there is some other reason to allow the application; or the squatter was under true belief that it was their land”^[26].

Bibliography

1. 1. Smith R.J; Property Law, 3^rd Edn. 2000, Longman

2. 2. Chappelle D; Land Law, 4^th Edn. 1999, Pitman Publishing

3. 3. Prof. Bell C.D; Land: The Law of Real Property, New Edn. 2000, Old Bailey Press

4. 4. Cheshire and Burn’s; Modern Law of Real Property, 16^th Edn. 2000, Butterwoths

5. 5. Adams T. Longshaw A. Morris C. Sewell T; Business Law and Practice, Jordans

6. 6. Adams T; Business Law and Practice: Legislation Handbook, Jordans

7. 7. Cavendish Law Cards; Land Law, 2^nd End. 2000, Cavendish Publishing Ltd.

Web-based resources used:

• • www.butterworths.co.uk
  • www.westlaw.co.uk
  • www.landregistry.gov.uk

Word Count:

1,599

Footnotes

^[1] Leech v. Schweder (1874) 9 Ch App 463 at 474. Mounsey v Ismay (1865)

^[2] Halsbury’s Laws of England 2005 para 8 Easements and Profits

^[3] Holdsworth, History of English law, Vol Vii page 324.

^[4] Rangeley v Midland Rly Co (1868) 3 Ch App 306 at 310

^[5] Ackroyd v Smith (1850) 10 CB 164

^[6] Hawkins v Rutter [1892] 1 QB 668.

^[7] Callard v Beeney [1930] 1 KB 353

^[8] Hanbury v Jenkins [1901] 2 Ch 401 at 422 per Buckley J

^[9] Pitt v Durham County Water Board [1938] 2 All ER 498.

^[10] Henning v Burnet (1852) 8 Exch 187

^[11] Ibid note 2 at para 12 Dominant Tenement.

^[12] Re Ellenborough Park

^[13] Powell v Maddison [1956] Ch 131 at 163

^[14] Burns’ et al Modern Law of Real Property 16^th Edn Butterworths 2000 at page 594.

^[15] Servient tenement.

^[16] Howell v King (1674) 1 Mod Rep 190; Lawton v Ward (1696) 1 Ld Raym 75; Ballard v Dyson (1808) 1 Taunt 279 at 283, 286–287; Cowling v Higginson (1838) 4 M & W 245 at 256–257; Williams v James (1867) LR 2 CP 577; New Windsor Corpn v Stovell (1884) 27 ChD 665 at 672 per North J

^[17] use being without force, without secrecy and without permission as per Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229

^[18] given its strictest meaning as per Dare v Heathcote (1856) 25 LJ Ex 245.

^[19] Bakewell Management Ltd v. Brandwood [2004] UKHL.

^[20] As he has continued to do so even after the sale of the orchard to Clarissa in 1983, a period of more than 20 years.

^[21] Bridges v Mees [1957] Ch 475

^[22] Land Registration Act 1925 s 75(2) (repealed)

^[23] (1979) 38 P & CR 452 HL

^[24] JA Pye (Oxford) Ltd v Graham [2000] Ch 676 per Neuberger J (on appeal [2001] EWCA Civ 117, [2001] Ch 804; [2002] UKHL 30, [2003] 1 AC 419

^[25] Buckinghamshire County Council v. Moran [1990] Ch 623 at 636.

^[26] Land Registration Act 2002.