Acquisition by Prescription Lecture

INTRODUCTION

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.

On the matter of prescription - which is the idea of attaining rights of easement or profit à prendre by a sustained period of exercising that act before it becomes a right - we need to deal with the following topics:

1. The concept of prescription;
2. The essential elements of prescription (in particular what is meant by the ‘user as of right’);
3. The effects of prescription; and
4. Prescription and statute.

Reservation pertains to the means by which a person, when transferring land formerly held by them to another person, is able to retain certain rights of easement over the land now transferred to another. We will discuss the following:

1. Express reservation; and
2. Implied reservation, in particular the distinctions between easements of necessity and easements of common intention.

Termination meanwhile is to do with how easements and profits à prendre may be brought to an end. We will examine the following issues pertaining to termination:

1. Unity of ownership;
2. Release (both express and implied forms of release);
3. Change of circumstances; and
4. The effect of termination on equitable easements and profits à prendre.

Finally, the effect of the transfer of dominant or servient estates to third parties will be discussed. As part of that discussion we will hone in on the following areas:

1. Benefits to third parties in legal easements;
2. Benefits to third parties in equitable easements;
3. Benefits to third party transferees vis-à-vis profits à prendre;
4. Burdens on third parties in legal easements;
5. Burdens on third parties in equitable easements and profits à prendre; and
6. Burdens imposed on third party recipients of legal profits à prendre.

PRESCRIPTION

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 squatting (the layperson term for adverse possession), because whilst adverse possession acts to extinguish old rights of title impliedly from a period of long use, prescription acts to create new rights impliedly from a period of long use. Prescription is about the owner of the servient land being deemed to have acquiesced to the long use (Mills v Silver [1991] Ch 271, CA per Dillon LJ).

Essential elements of prescription

As with the other forms of creation of easements and profits à prendre, invoking prescription requires the fulfilment of various criteria. The criteria are as follows:

1. User in fee simple: Both of the relevant parties (i.e. the “dominant tenement” owner and the “servient tenement” owner) must both be users in fee simple. (The fee simple is the ownership of land where the ownership is of unlimited duration; the fee simple is the primary estate in land with an absolute right to possession of the land.) By contrast, the common law will not ascribe prescription against a party who is not a user in fee simple, such as a tenant for years. This is because the actual user in fee simple of the servient land ought not to be affected by a user of whom he, the “servient” user in fee simple, had been unaware and was therefore in no position to impliedly accede to or refuse the acts of prescription (Pugh v Savage [1970] 2 QB 373, CA per Cross LJ).
2. Continuous user: This refers to the frequency of the use of the alleged right exercised by the “dominant tenement” owner. Continuous does not necessarily connote constant, or even regular; the requirement of continuous user may be satisfied where the use of the alleged right is infrequent. In one case, the condition of continuous user was satisfied by the application of the alleged right on as few occasions as six to ten occasions in each year for 35 years (Diment v NH Foot Ltd [1974] 1 WLR 1427, ChD).
3. User as of right: There are certain limits to how the right of prescription may be acquired. The “dominant tenement” owner cannot have acted illegally to acquire the right (unless the servient tenement owner was in a position to, and did, render the act lawful, as per Bakewell Managements Ltd v Brandwood [2004] UKHL 14). It is possible to acquire a right of prescription where the “dominant tenement” owner had honestly yet mistakenly believed that they actually owned the disputed land or had an express right of grant (Bridle v Ruby [1989] QB 169, CA). With all that said, the right of prescription is subject to certain limits, and those limits are as follows:

1. User nec vi, translated as “without force”, means that a person cannot have acquired the right of prescription by the use of force. This does not only apply to force against persons; it applies also to force against objects too, such as the deliberate removal of obstructions previously laid down by the owner of the “servient tenement” (R (on the application of Beresford) v Sunderland CC [2003] UKHL 60 per Lord Rodger of Earlsferry).
2. User nec clam, which means “without secrecy”, refers to the prohibition against any concealment or surreptitious behaviour by the long user regarding the application of that use. In other words, a person intending to claim a right of prescription cannot lawfully acquire that right if they act in such a way as to hide their use of the land from the “servient tenement” owner, whether or not the “dominant tenement” owner intends to conceal it from the servient tenement owner. For example, underground fixings which were long undetected could not give rise to a right of prescription (Union Lighterage Co. v London Graving Dock Co. [1902] 2 Ch 557, CA).
3. User nec precario refers to “without permission.” It means that prescription cannot arise where the landowner has given their permission or consent to the “dominant tenement” owner to use the land in the manner intended (Odey v Barber (2006) EWHC 3109 (Ch)). If for example the “dominant tenement” owner uses the land as intended in exchange for periodic payments to the “servient tenement” owner (Mills v Silver [1991]), or where a gate placed over a path is locked for periods of time at the owner’s discretion (Goldsmith v Barrow Construction Co. Ltd. ) then permission has been granted and prescription cannot apply.

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 following conditions (Dalton v Angus & Co (1881) 6 App Cas 740, HL per Fry J):

• The “servient tenement” owner knows of the acts done by the person claiming the right;
• The “servient tenement” owner has the power to stop the acts or to sue in order to stop them; and
• The “servient tenement” owner nevertheless abstains from the exercise of such powers.

The test for user nec precario is that the manner of the use must be “such as to bring home to the mind of a reasonable person that a continuous right of enjoyment is being asserted” (Mills v Silver [1991]). So if all of these conditions are present - knowledge, power to prevent or stop, and abstaining from acting - it is no defence on the part of the servient tenement owner, raised only later, that he had merely tolerated the user in question (R v Oxfordshire CC, ex parte Sunningwell PC [2000] 1 AC 335, HL per Lord Hoffmann).

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 merely equitable) status.

As mentioned above, the concept of prescription requires a period of long user lasting for 20 or more years. 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, i.e. since 1189 CE (see above paragraph). The idea of the lost modern grant infers from the use of the land for 20 years’ or more by the alleged dominant tenement owner that some kind of right, as claimed by the alleged dominant tenement owner, had once been the subject of a formal modern grant that has since become misplaced and lost (Dalton v Angus & Co (1881)). It is for this reason that English common law will now infer a prescriptive acquisition of easements and profits à prendre following a period of continuous use after 20 years since the right was first exercised (Smith v Brudenell-Bruce [2002] 2 P & CR 51, ChD).

Prescription and statute

When claiming a right of prescription under statute via the Prescription Act 1832, the above conditions would still apply (that is, without force, without secrecy, and without permission). 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:

1. Under s.2 of the Act an uninterrupted user for 20 years or more cannot be defeated by evidence that such use commenced after 1189.
2. Where the right claimed is an easement (other than an easement of light) and has subsisted for 40 years or more then the right is said to be ‘absolute and indefeasible’ unless it was brought about by written agreement or consent (Prescription Act 1832, s.2).
3. For easements of light, a period of 20 years is sufficient to render the claimed right ‘absolute and indefeasible’ unless conferred by written agreement or consent (s.3).
4. Profits à prendre face the greatest hurdle: in order to be ‘absolute and indefeasible’, they must have been enjoyed for 60 years or more (s.1).

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 [1991]).

RESERVATION

As we briefly discussed in the previous chapter discussing the creation of easements, 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. Reservation can be either express or implied.

Express reservation

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)). Despite the wording of the statute, in case law the courts have tended to take a different approach. Where there is a dispute over the effect of the wording, the court will tend to construe the wording against the servient owner and thus in favour of the dominant owner (St. Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2) [1975] 1 WLR 468, CA).

Implied reservation

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; this was the decision of, and not the principle expressed in, Wheeldon v Burrows (1879) 12 Ch D 31, CA. There are only two ways in which reservation may be implied: necessity, and common intention.

1. Easement of necessity: This form of easement is rarely approved by the court in the context of reservation, because it is almost always would have been more reasonable for the transferor to have expressly reserved their right. However, there are exceptions. For example, if a transferor disposes of all the land which is adjacent to, or surrounds the land which he retains, and the only possible means of accessing the land they still own is by traversing the land now transferred, then the law will imply a reservation over the transferred land. Otherwise, the land still owned by the transferor would be completely inaccessible and therefore entirely unusable.

But this right is strictly and rarely implied by the court: if the retained land enjoys the benefit of a legal right of access over the land of a party other than the transferee (Barry v Hasseldine [1952] Ch 835, ChD) or if the transferor retains an adjoining property that allows them an alternative means of accessing their land (Ray v Hazeldine [1904] 2 Ch 17, ChD) then the court will not imply a right of reservation.

2. Easement of common intention: If both parties had intended for a reservation to take place despite the absence of wording to that effect in the document of transfer, then the court may imply a right of reservation. The burden of proof lies squarely with the transferor to show that the implied reservation was mutually intended (Re Webb’s Lease [1951] Ch 808, CA; Peckham v Ellison (2000).

TERMINATION

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) 74 P & CR 42, CA).

Release

An easement or profit à prendre can be terminated by a release, and a release can either be express or implied:

1. 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. Given the duty under the Land Registration Rules 2003 as specified above, upon release an appointment with the registrar should be made to cancel the relevant entries in the land registry.
2. 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. Therefore, if the exercise of the right has temporarily ceased, either unilaterally by the dominant tenement owner, or as per an agreement with the servient tenement owner that the exercise will only cease temporarily, then the court will not say release has occurred. A court will not readily imply release even where the cessation of the exercise of the right has lasted for a long period.

Key Points:

• The right of way was not exercised for a substantial period of time. Indeed, it was not exercised over the course of several lifetimes i.e. it was not exercised for 175 years.
• The court said that the value of the right held greater weight than the period of non-use.
• Given the value of the right, release could only occur upon express declamation of the intention.
• The court gave little weight to the fact that the right of way was not used because the owners of the dominant tenement had been using a different right of way.

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. This is regarded as a “change of circumstance.”

Key Points:

• An easement can cease to exist, even where there is no express agreement that such termination should take place, in specific circumstances.
• Those circumstances should ‘have changed so drastically since the date of the original grant of an easement (for example by supervening illegality) that it would offend common sense and reality for the court to hold that an easement still subsisted.’
• The main hurdles set by that test therefore are a) that conditions have changed ‘so drastically’ (the word ‘so’ acting to set the bar higher) and b) subsistence of such would ‘offend common sense and reality’. This is akin to the test of strict necessity.

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. Of particular note for equitable easements is that such a termination is deemed to take place where it would be inequitable to ‘revive the rights thereby abrogated’ (Davies v Marshall (1861) 10 CBNS 697).

THIRD PARTIES

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.

BENEFITS

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. Where it is created between freeholders, that right can be enjoyed by any subsequent occupier of the dominant land notwithstanding that the tenant is not a freeholder of the land (Thorpe v Brumfitt (1873) LR 8 Ch App 650, CA in Chancery), and subtenants can enjoy the same benefits.

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).

BURDENS

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. So if a servient tenement is not validly transferred, then the third party transferee is not subject to the burden imposed by the dominant tenement against the servient tenement.

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 registration requirement is not complied with, the disposition of an expressly created easement is ineffective at law and may only operate in equity (Land Registration Act 2002, s.27(1)).

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. Upon the registration of the land via the Land Register, the burden is to be entered on to the charges register of that estate (Land Registration Act 2002, s.14(b) and Land Registration Rules 2003, r.35(1)).

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, if the profit à prendre was created by way of prescription or implication, then the profit will override any registered disposition of the land (Land Registration Act 2002, .s29(1), (2)(a)(ii), Schedule 3, paragraph 3(1)). 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)). But in all other instances, the burden of an equitable easement or profit upon transfer to a third party will only be valid if the transfer is accompanied by a ‘notice’, entered prior to the disposition at issue, in the charges register as relating to the servient tenement (Land Registration Act (LRA) 2002, s.29(1), (2)(a)(i)).

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, meaning before 13^th October 2003, then that burden will apply (Celsteel Ltd v Alton House Holdings Ltd  [1986] 1 WLR 512, CA), and as such an easement or profit à prendre that pre-dates 13^th October 2003 will successfully override a registered disposition of the servient estate (LRA 2002, Schedule 12, paragraph 9).

In unregistered land, if an equitable easement or profit à prendre is created on or after 1^st January 1926, it can be made enforceable against subsequent disponees of the servient tenement land. Such rights are enforced by the registration of a Class D(iii) land charge against whichever person owning the estate had granted the right in question (Land Charges Act 1972, s.2(5)). If the easement or profit à prendre is created prior to 1^st January 1926, such a right will be enforceable against a purchaser of the servient land so long as they have been given sufficient notice (see the chapter on ‘Third Parties’ for more information).

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