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Prescription only

The law surrounding the prescription of easements is fraught with problems, says Laurie Heller

13 September 2002

The whole law of prescription, which governs the presumption or inference of a grant of an easement, rests on acquiescence. The law provides remedies for those whose possession of land has been disturbed by the exercise of rights by others. After the passage of time, the continual enjoyment of the rights which have not been resisted becomes recognised at law and indefeasible. Where rights by prescription are claimed, the servient owner must:
  • Know of the acts which are done;
  • Have the power to stop the acts being done; but
  • Abstain from exercising that power. In every claim by prescription, whether by statute or law, the user must be ‘as of right’ – not be by force, by stealth, or by consent. The burden of proof is on the claimant by presciption to show these elements have not been present. Force extends not only to violence but also to use which is contentious or exercised in the face of protest. ‘Perpetual warfare’ between the parties amounts to force whic...
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