Introduction
An easement is a right enjoyed by a landowner over the land of another, such as a right of way. While easements are often created expressly by deed, the law also allows for their creation through long and continuous use under the doctrine of prescription. This doctrine is based on the principle that a right which has been enjoyed for a significant period without challenge should be given legal recognition. This essay will critically assess the value of the doctrine of prescription. It will argue that while the underlying purpose of prescription has value in regularising long-standing land use, its current legal framework in England and Wales is unnecessarily complex, uncertain, and outdated. The co-existence of three separate methods of acquisition significantly undermines the doctrine's practical value and creates a system in need of reform.
The Methods of Prescription
The value of prescription is immediately complicated by the fact that it is not a single, unified doctrine. Instead, a claimant seeking to establish an easement by prescription can rely on one of three different methods: common law prescription, the fiction of lost modern grant, and the Prescription Act 1832.
Common law prescription is the oldest method and requires the claimant to prove that they, and their predecessors, have used the right since "time immemorial," which the law fixed as the year 1189. Proving continuous use for over 800 years is practically impossible. If it can be shown that at any point since 1189 the right could not have existed, the claim will fail. Consequently, this method has very little practical value today.
To overcome the evidential difficulty of common law prescription, the courts developed the doctrine of lost modern grant. This is a legal fiction which presumes that where there has been at least 20 years of continuous use as of right, a deed granting the easement was lawfully made at some point after 1189 but has since been lost (Dalton v Angus & Co, 1881). The key advantage of this method is that the presumption cannot be rebutted by evidence that no such grant was ever made. It therefore provides a workable, if intellectually questionable, basis for a claim.
The third method is statutory, under the Prescription Act 1832. This legislation was intended to simplify the law but has largely been seen as a failure. The Act provides for two periods of use: a shorter period of 20 years and a longer period of 40 years. A claim based on 20 years' use can be defeated by showing oral consent was given, whereas a claim based on 40 years' use can only be defeated if consent was given in writing. The major difficulty with the Act is its requirement that the period of use must be that "next before some suit or action" is brought concerning the claim. This means a prescriptive right under the Act is not fully established until a court confirms it, creating significant uncertainty for landowners.
An Assessment of the Doctrine's Value
The primary value of prescription lies in its policy objective. The doctrine gives legal force to practical arrangements that have been observed and relied upon for many years, promoting certainty and preventing landowners from acting unfairly by revoking informal permissions that have been enjoyed for decades. It ensures that the formal legal position reflects the reality on the ground, which is a sensible goal for any property law system (Gray and Gray, 2011).
However, the value of this objective is severely undermined by the means used to achieve it. The existence of three overlapping, complex, and archaic methods is the doctrine's greatest weakness. The Law Commission has described the current law as "arcane, uncertain, and incomplete" (Law Commission, 2011, para 3.2). This complexity increases the cost of litigation and makes it difficult for landowners to understand their rights and obligations without specialist legal advice.
The Prescription Act 1832, intended as a reform, has been a particular source of criticism. Its drafting has been judicially condemned as "ill-penned" and "confused" (Colls v Home and Colonial Stores Ltd, 1904). The "next before some suit or action" requirement is especially problematic, as it forces parties into litigation to crystallise a right, which is the opposite of what a clear and certain law should do. Furthermore, the fiction of the lost modern grant, while useful, is an awkward and intellectually dishonest tool for a modern legal system to rely upon. As Lord Neuberger noted in London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356, it involves the court being "obliged to indulge in a fiction".
Conclusion
In conclusion, the doctrine of prescription is a concept with inherent value. Its aim of validating long-established use to ensure land is used efficiently and fairly is logical and important. However, the current law for achieving this aim is deeply flawed. The confusing and overlapping nature of common law, lost modern grant, and the Prescription Act 1832 creates unnecessary complexity and uncertainty, which detracts significantly from the doctrine's overall value. The Law Commission (2011) has proposed a single, simplified statutory scheme to replace the current mess, a reform which is long overdue. While the principle of prescription is valuable, its current form is a historical relic that serves landowners poorly, making the law more of a problem than a solution.
References
- Colls v Home and Colonial Stores Ltd [1904] AC 179
- Dalton v Angus & Co (1881) 6 App Cas 740
- Gray, K. and Gray, S.F. (2011) Land Law. 7th ed. Oxford: Oxford University Press.
- Law Commission (2011) Making Land Work: Easements, Covenants and Profits à Prendre. Law Com No 327. London: The Stationery Office.
- London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356
- Prescription Act 1832
